For many foreign workers in the United States, the H-1B visa program represents an opportunity for professional growth and career advancement. However, navigating the intricacies of the H-1B transfer process can be challenging, especially if you find yourself in a situation where you’ve been benched for an extended period.

Being “benched” refers to a scenario where an H-1B visa holder is not actively engaged in productive work for their sponsoring employer. This could happen due to various reasons such as project completion, lack of available projects, or even economic downturns. While benching is not illegal per se, it can have serious implications for both the employer and the employee, particularly when it extends for an extended duration like six months.

Understanding H-1B Transfer

An H-1B transfer allows an employee to change employers while maintaining lawful status in the United States. This process involves the new employer filing a new I-129 petition on behalf of the employee. However, undergoing an H-1B transfer after a period of benching requires careful consideration and planning.

Challenges of H-1B Transfer After Benching

When an H-1B visa holder has been benched for an extended period, the biggest concern is the ability to establish maintenance of status.

To be eligible to file an H-1B transfer USCIS requires evidence that the beneficiary has been maintaining their H-1B status. Extended periods of benching can raise questions about the validity of their status. Paystubs are used as primary evidence of maintenance status, and our firm typically submits paystubs for 3 months prior to filing the petition.

However, an individual who has been benched without pay for 6 months will not be able to provide recent paystubs. In the absence of recent paystubs, it will be very difficult for this individual to demonstrate that they have been maintaining their legal status. If the gap in pay records reflects 60 days or less, then the individual can rely on the 60-day grace period. However, a lengthier absence would not be covered by this grace period.

The individual in question may argue that it is not their fault that they were not paid. This is true and if an individual is benched without pay, they would have a legal right to complain to the Department of Labor (DOL) regarding unpaid wages. However, with the absence of pay records it will make it difficult to prove maintenance of status and most likely USCIS will approve the H-1B for Consular processing. This would require an individual to depart from the US, possibly go for stamping if their current visa has expired, and then return in valid H-1B status.

Conclusion

The anti-benching provision passed as part of the American Competitiveness and Workforce Improvement Act of 1998 specifically allows an employer to keep an H-1B employee during any “non-productive periods if the employee is paid. If the employee is paid, then filing a transfer/extension should not be problematic because the individual will have paystubs to demonstrate maintenance of status.

However, what we most frequently see is individuals being benched without pay. As indicated above, a gap in pay for more than 60 days will make it difficult to demonstrate maintenance of status. If you are unable to show maintenance of status expect USCIS to approve your case for Consular processing and be prepared to travel to fix your status.

If you have any questions regarding the above, please contact PLG Partner Chris Prescott at cprescott@patellegal.com.