Employer harassesment

[mick2012]

Hi,
I have been working with my employer since 2008. I have received by EAD and planning to change employer using AC-21. But want to file a case against my employer on the issues below.

1. He has charged from me H1B and H4 fees. I paid him $4500. He had promised to return those in 3 months time, but never refunded. Legally, he is suppose to borne all H1B/H4 application fee, correct?

2. In 2010, he did not pay my full salary. As I am working on percentage basis, there is always a different pay stub each month depending on my working hours. He did not pay approximately $3000 and denies any arrears in pay.

3. He reduced my percentage sharing from 75/25 to 70/30 without any notice.

4. He also abused me at times.

With all this, I do not wish to continue with my current employer. I would like to send him a notice through lawyer for all the above issues and charge him with exploitation and ask for monetary compensation.

Can I file a case against him?
Will that impact my GC processing?
Can he revoke my I-140/EAD and create issues in AC-21?
I have always found my client as he does not have any marketing. Will that further complicate my GC case?

I would appreciate your advice here. I will not file case against him if my GC might be impacted with this. Please let me know what can we do with such employer and how to recover the arrears.


I believe many of us might be going through similar issues and exploitation.

Thanks in advance.

Mick

 

[Jackolantern]

1. The employer is obligated to pay the H1B fees, but not H4.
2. Did his short-changing cause your wages for the year to drop below the prevailing wage listed on the LCA documentation for the H1B?
3. Do you have a contract preventing him from changing the percentage? Does that percentage drop cause your wages to drop below the prevailing wage for the H1B?
4. Do you have proof of that abuse?

I suppose that if you take legal action, it would be after you've already changed jobs and your I-485 has been pending for at least 180 days. Otherwise the employer could revoke your I-140.

 

[mick2012]

Thanks Jackolantern for prompt response.
Answer to your queries is as below

1. So it is legal to file a case for charging me for H1B fees. Correct?

2. It did not lower my wages than mentioned in LCA.

3. Contract does not mention he has liberty to change wages (percentage sharing in my case) without intimation. I believe there should be a federal law where you need to at least intimate the employee for any change in wages. Is it legal to change the wage? Can I fight on that basis.

Can i file a case to pay back all the lost wages for all these years since he lowered?

4. I have a phone recording of his abuse. Also he does not respond to mail related to pay arrears in reasonable time.

What if my employer is black listed and his license to operate is revoked based on my case filing, will my GC be impacted?

Your time and advice is highly appreciated.

Thanks

 

[Jackolantern]

1. Yes, you can sue or report them for charging you the H1B fees. But you'll need evidence.

2 and 3: My understanding is that under immigration law, they can drop the wages as long as it doesn't go below the prevailing wage listed on the LCA of the H1B. However, that doesn't apply if you've used the EAD, because by using the EAD you're no longer in H1B status so they'd no longer have to comply with the LCA wage.

There may be some provisions in your state labor law that restrict their ability to cut your wage, although if you don't have a contract specifically stopping them from cutting your pay, that restriction might only apply to the current pay period (e.g. if you get paid every 2 weeks they can't cut it for the current 2 weeks but they can for the next 2-week period). You'll have to consult a labor lawyer in your state to find out exactly what the rules are.

4. If you are a W2 employee (which you should be if you're working as H1B), there are serious penalties for an employer who doesn't pay wages on time. Usually if you send a letter from a lawyer demanding your unpaid wages, the employer will pay quickly in order to avoid further action by the lawyer and investigation by the state government.

If the employer committed fraud in your GC process, your I-140 may be revoked by USCIS, and your GC can even be revoked after it's granted.

 

[mick2012]

Thanks Jackolantern.

Still not sure if there is no fedaral law where the employer cannot reduce the pay without the prior intimation to the employee. I am not against the pay reduction, but it should not happen without the prior intimation to the employee.

1. Yes, you can sue or report them for charging you the H1B fees. But you'll need evidence.

2 and 3: My understanding is that under immigration law, they can drop the wages as long as it doesn't go below the prevailing wage listed on the LCA of the H1B. However, that doesn't apply if you've used the EAD, because by using the EAD you're no longer in H1B status so they'd no longer have to comply with the LCA wage.

There may be some provisions in your state labor law that restrict their ability to cut your wage, although if you don't have a contract specifically stopping them from cutting your pay, that restriction might only apply to the current pay period (e.g. if you get paid every 2 weeks they can't cut it for the current 2 weeks but they can for the next 2-week period). You'll have to consult a labor lawyer in your state to find out exactly what the rules are.

4. If you are a W2 employee (which you should be if you're working as H1B), there are serious penalties for an employer who doesn't pay wages on time. Usually if you send a letter from a lawyer demanding your unpaid wages, the employer will pay quickly in order to avoid further action by the lawyer and investigation by the state government.

If the employer committed fraud in your GC process, your I-140 may be revoked by USCIS, and your GC can even be revoked after it's granted.

 

[Jackolantern]

Thanks Jackolantern.

Still not sure if there is no fedaral law where the employer cannot reduce the pay without the prior intimation to the employee. I am not against the pay reduction, but it should not happen without the prior intimation to the employee.

There definitely is no such Federal law against cutting your pay for future work (other than paying you at least minimum wage, or at least the LCA prevailing wage in the case of H1B). They are required to pay the agreed wage for work you already did, but under Federal law they can cut your wages starting tomorrow if there is no contract or state law stopping them from doing that.