Have you ever imagined how far things can go if we mess with the United States Visa System? In either case of the employer or the employee, you may not fraud the visa system in the United States, since what you might have to pay due to the situation would be worse. In this post, I would like to talk about a case study which happened very recently, where an Indian-American company “Dibon Solutions based in Texas” was indicted due to fraud in the H-1B visa category.
According to the 15-page indictment, the summary is:
An Indian American company based in Texas has been indicted by federal authorities on charges of fraud in the H-1B visa category and using it to create a low-cost workforce in the US.
Why was the company Indicted?
This particular company has been making their employees work under the EVC (Employer-Vendor-Client) model, with the company serving as an employer. So, this company hired workers on H-1B visa and made their employees work as a consultant for a third-party company (client). They in turn only paid their employees when they worked and only if the third-party company paid the indicted company.
Also the company falsely represented that those H-1B employees working for the company were full time employees and were getting paid on an annual basis. The company did not report the USCIS when there is a change in the location of the work of any particular employee. The employer needs to update the USCIS about the change of location, if different from the petitioner’s company address.
Another important addition to the whole story is that the employer was not paying the employees while they were “on bench”. H-1B employees cannot be “on bench” and if the candidate is not required any more for the company, they should terminate the candidate’s H-1B visa instead.
What is being “On The Bench”?
According to the United States Department of Labor, “Benching refers to workers who are in nonproductive status due to a decision by the employer, such as lack of work or a permit. Sometimes this is referred to as “on the bench”.
It is very important to know that “On the Bench” is not applicable to workers on H-1B visa. The employer needs to pay the employee even though he is out of work, unless the employer terminates the candidate’s H-1B visa.
What you may consider knowing?
- Employers need to pay their employees annually irrespective of the employees working for the same company or to a third-party company.
- Employers cannot place an H-1B visa holder “on the bench” without being paid. The employee needs to be paid regularly even though the candidate is out of work, or the other option would be to terminate the employee’s H-1B visa
- Employers need to report the USCIS of any location change of place of work of the employee on H-1B visa, if different from the petitioner’s company address.