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Suing your H-1/PERM Sponsor

By Thomas M Lee

When an employer sponsors a foreign worker for permanent residence (PERM) or a work visa, like the H-1, L-1, E-1, E-2, or O-1 visa, it certifies under penalty of perjury to the U.S. Citizenship and Immigration Services, U.S. Department of Labor, and/or Secretary of State that it will pay the foreign worker a certain wage. For H-1 visas and permanent residence cases, it is call a prevailing wage. A prevailing wage is set by the Department of Labor to prevent the displacement of U.S. workers. In other words, the U.S. government wants to discourage employers from employing a foreigner because it is cheaper than hiring a U.S. worker. The prevailing wages are typically set at a higher rate than what an average U.S. worker would get paid for a particular position. Usually, it is very high. Hence, many employers believe that they can get away with paying the foreign worker a wage much lower than the prevailing wage since the government will not find out, and they are doing a favor for the foreign worker by sponsoring them. The foreign worker will not complain, right?

Wrong. Employment relationships almost always end sooner or later. And, if it ends badly, it is likely the foreign worker will consult an attorney for advice and sue. Depending on the length of employment and the difference between the prevailing wage and the actual paid wage, the amount of damages the employee can seek from the employer can be astronomical since they can seek to recover 4 years worth of unpaid wages plus interest. Additionally, if the employer guaranteed the employee's living expenses in the U.S. as is required in some visa matter, but does not pay it, there is usually no limit to the number of years worth of living expenses that the employee can later seek to recover.

In the end, foreign workers should keep with them a complete copy of all documents, letters, and forms signed by their sponsor company, which their immigration attorney must provide them. If the employer is not providing all the wages and benefits to the employee as detailed in writing, the foreign worker should keep careful notes, calculate how much is owed, and consult Thomas M. Lee about bringing a lawsuit after the employment ends.

Please note that the information I am providing here in this entry, or in my website is NOT to be construed as legal advice nor is it meant to form an attorney-client relationship. For a free legal consultation by phone, please call or email me anytime.