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 H-1B and Benching Regulations

A “benched” employee refers to one who is currently between work projects.  In most cases, these types of employees are employed by a job contractor who contracts their services out to clients. In this situation, the job contractor is considered the employer, the company that the foreign national provides services for is the client of the job contractor, not the employer of the H-1B. The job contractor petitioned the INS to grant H-1B status to the foreign national.  

When a foreign national is benched because there is no immediate work project available, he is still entitled to receive compensation. The employer is bound to pay the foreign national as attested on the labor condition application. He may not withhold payment claiming that the employee is not entitled to it because the employee did not work. Should the employer fail to pay the H-1B employee, the employer will be in violation of federal regulations and will have to pay back-pay. Moreover, he risks incurring possible penalties for failure to comply with the employer requirements of H-1B sponsors.  

When an H-1B employee takes time off from working for personal reasons (e.g. employee is hospitalized or takes a leave of absence), generally, the employer does not have to compensate the employee for this temporary period of time. However, the employer will have to provide compensation if it normally does and normally makes this available to its workers.

Employers are also bound to pay its H-1B employees even when the employer experiences a temporary shut down in its operations. If the employer shuts down the company for a period of 10 days during the Christmas holiday season, it must continue to pay its H-1B employees during this period, even if the employer is not compensating the U.S. workers.  

As discussed above, employers accept important responsibilities when choosing to sponsor a foreign national on a H-1B. Employers should be careful to be aware of the requirements imposed on them to ensure that they are in compliance. Doing so minimizes potential violations and ensures that the employer can continue participating in the H-1B program. For more information, please schedule a consultation with our firm.