Obligation to pay: non-productive time

An H1-B employer is obligated to pay his H1-B employee non-productive time. 

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What is counted as non-productive time, that an H-1B employer must pay for?

The employer must pay for non-productive time if it caused by:

  • Conditions relating to employment.
  • Lack of assigned work.
  • Lack of necessary work permit(s).
  • H-1B worker is studying for a licensing exam.
  • H-1B worker is in employer required training or orientation.
  • If the worker is benched.

What is benching and why is it important?

Benching is the term for when an H-1B worker is temporarily put out of work due to a decision by the employer (e.g. no current projects). If an H-1B worker is benched, the employer must continue to pay the required wage rate, even if in those same circumstances, the employer would not pay their U.S. workers. By not paying the H-1B worker during this time, the employer will be violating rules set by the DOL and may face consequences such as being ordered to remit back pay and face possible debarment from the H-1B program.

When must the employer start paying non-productive time?

The employer must start paying non-productive time, from the time of the following events, whichever comes first.

  • As soon as the H-1B Worker “enters into employment”. This is defined as when the H-1B worker is available to work or beings training or orientation i.e. when the employee “comes under the control of the employer”.
  • Within the first thirty days that the H-1B worker is admitted into the United States in direct correlation with their H-1B petition. If such is the case, the employer must pay whether or not the H-1B worker has “entered into employment”.
  • If the worker is already in the United States, the employer must begin payment no later than sixty days after the H-1B worker is approved to work for the employer (as noted by the approval date on the USCIS Form I-797 which is issued when an application or petition is approved). In this case too, the employer must pay whether or not the H-1B worker has “entered into employment”.

How does an employer establish how much non-productive pay is owed and for how many hours?

It all depends on how the H-1B is set up to work.

  • If the worker is full-time on a salary, then they must be paid the full amount of the required wage rate.
  • If the worker is full-time, but paid hourly, then they must be paid 40 hours or whatever the employer has established is full-time for its employees.
  • When the worker is part-time, the employer must pay for the minimum number of hours indicated on the Form I-129/129W, Part 5.
  • If the employee is part-time with a range of hours listed on the Form I-129/I-129W, then they must be paid, at the minimum, the average number of hours worked (provided that the average is within the range of hours as indicated). In no way should the H-1B worker EVER be paid for less than the minimum number of hours listed for the range of part-time employment.

When does the employer not have to pay or can stop paying for non-productive time?

  • If the H-1B worker becomes non-productive due to a reason unrelated to employment such as voluntary absence due to pleasure or illness, the employer does not need to pay.
  • The employer can stop pay for non-productive time if the H-1B worker undergoes a “bona fide termination of employment”.
  • H-1B employers are REQUIRED to notify the worker that he is being terminated, notify the USCIS of the H-1B employee’s termination and the H-1B petition should be cancelled.
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