Quick Summary:
You’ve just been laid off and your employer is saying that that as long as you’re “employed” it doesn’t’ matter if you get paid or not. You can remain in H-1B status until you find a new job. You are being misled! H-1B status is built on being employed and actual wage payment-, not paperwork. This article explains why unpaid H-1B employment or “benching” is illegal, how it blocks H-1B transfers, and what to do before irreversible damage occurs.
Understanding Why Wage Payment Is the Foundation of H-1B Status
Maintaining H-1B status is closely tied to actively getting paid at least the required wage listed in the certified Labor Condition Application (LCA). Officially remaining on payroll without pay does not preserve lawful H-1B status – it’s called “benching” and USCIS and Dept. of Labor have explicitly forbidden the practice.
The H-1B program is not merely a job title or an employer name attached to your I-797. It is a wage-based status regulated by the Department of Labor (DOL). Once wage payment stops, lawful H-1B employment may also stop except in very specific, defined circumstances, regardless of what the employer promises.
What the Law Actually Requires
Under DOL regulations (20 CFR §655.731), an H-1B employer must:
- Pay at least the required wage
- Pay continuously, even during nonproductive periods, unless the employee specifically requests leave for reasonable reasons, e.g., hospitalization, FMLA, maternity/paterniety leave, etc.
- There is no exception for:
- Startups
- Financial hardship
- “Temporary” zero salary arrangements
- Job searching periods
Real-Life Scenario
A startup founder tells an engineer:
“We can’t pay you right now, but we’ll keep you on payroll and won’t notify USCIS about withdrawing your H-1B so your H-1B stays active.”
Six weeks later, the worker finds a new employer, only to learn the H-1B extension of status with the transfer is denied because the worker had not maintained H-1B status.
VisaPro Tip:
If wages stop, your H-1B clock stops. Always verify actual payroll deposits, not verbal assurances, when assessing your status.
Why “Staying on payroll” Without Pay Is Benching, Even If You Agreed
Being listed as an employee on W-2 without receiving wages violates H-1B regulations and exposes both the employer and employee to serious immigration consequences, including loss of status and future visa denials.
Many professionals believe that consent makes the arrangement legal. It does not.
Common Myths That Trap H-1B Workers
| Myth | Reality |
|---|---|
| “I agreed, so it’s fine” | Consent does not override federal law |
| “It’s temporary” | Violations begin on Day 1 |
| “Startups get flexibility” | DOL applies rules uniformly |
Why Employers Push This Scheme
- Avoids severance costs
- Avoids formal termination and obligations for unemployment benefits
- Shifts risk to the worker
- Buys time during fundraising
But the legal exposure falls disproportionately on the employee.
Hidden Consequences
- H-1B transfer denials
- Green card delays
- Future visa scrutiny at consulates
VisaPro Tip:
If an employer proposes unpaid time, even briefly, assume immigration risk exists and consult counsel immediately.
How the “No Salary” Trap Destroys Your Ability to Transfer H-1B Status
An H-1B change of employer petition generally requires proof of valid, maintained status if you want to also extend your H-1B status. If wages are not paid, USCIS may determine you were out of status, making portability impossible.
H-1B portability under AC21 is conditional. USCIS examines:
- Pay stubs
- Bank deposits
- W-2 consistency
- LCA wage compliance
What Happens During Transfer Review
USCIS issues an RFE asking for:
- Recent pay stubs
- Employer verification
- Proof of wage payment
When wages are missing, the case may collapse.
Case Example
A product manager stayed “employed” at $0 salary for two months. New employer files H-1B transfer with no recent paystubs.
Result:
- RFE issued
- H-1B approved but extension of status denied
- Departure from U.S. required
- H-1B restart abroad
VisaPro Tip:
Before accepting a new offer, have an attorney review your last 3–6 months of payroll records, not just your approval notice.
Safer, Lawful Alternatives After Layoff, What You Should Do Instead
When your H-1B employment genuinely ends, whether through layoff, termination, or voluntary resignation, you have legitimate options that don’t involve immigration fraud or status violations.
First, understand your grace period. You have 60 days or until the expiration of your I-94 date – use that time strategically. From your last day of employment, you have up to 60 days (sometimes less) to find a new H-1B sponsor and have them file a transfer petition, change to another status, or prepare to depart. This period is tight but workable if you act immediately.
VisaPro Tip:
Before accepting any unusual arrangement with your employer, spend 30 minutes with an immigration attorney. A brief consultation costs far less than the financial and emotional cost of discovering months later that you’ve been out of status and must leave the United States.
Protecting Yourself from the Zero-Salary Trap
Prevention is always better than damage control. If your employer experiences financial difficulties or mentions layoffs, start preparing immediately. Update your resume, activate your job search networks, and consult with an immigration attorney about your options before you’re laid off.
If an employer offers any arrangement involving unpaid work, deferred compensation, or staying “on the books” without regular paychecks aka “benching, decline immediately. These arrangements, however well-intentioned, can destroy your immigration status. Your employer’s promise to “help” is actually harming you severely.
Get everything in writing. If you’re being laid off, request a clear termination letter stating your last day of employment. This documentation will be crucial for proving to USCIS that you maintained status and used your grace period properly.
Track your days carefully. Know exactly when your grace period expires. If you have the full 60 days, set reminders at 30 days and 45 days to ensure you’re making progress on your next step, whether that’s a new job offer, a change of status filing, or departure preparations.
If you’ve already fallen into the zero-salary trap, consult an immigration attorney immediately. Depending on how long you’ve been unpaid and whether you’ve accrued unlawful presence, you may have options to minimize the damage. In some cases, voluntary departure before accruing 180 days of unlawful presence can preserve your ability to return to the U.S. in the future. Additionally, you may have the option of obtaining recourse and back-wages through the Dept. of Labor.
Why VisaPro Intervenes Early in Wage-Based H-1B Crises
Wage violations are correctable only within narrow timelines. VisaPro focuses on early detection, documentation repair, and lawful exit strategies to preserve future eligibility.
VisaPro has handled:
- Startup shutdown cases
- Payroll manipulation cases
- DOL audit exposure
- Emergency H-1B rescues
We focus on future preservation, not blame.
VisaPro Tip:
If unpaid work has already occurred, do not self-file or guess,- legal sequencing matters.
Frequently Asked Questions (FAQs)
‘
1. Can I stay on H-1B without salary?
Generally, no. H-1B status requires continuous wage payment at or above the LCA rate. Unpaid periods violate status immediately unless worker has requested a voluntary leave for lawful reasons.
2. Is unpaid H-1B employment legal?
No. Unpaid H-1B employment is illegal under Department of Labor regulations, regardless of employer size or employee consent.
3. Does being on payroll maintain H-1B status?
No. Being kept on payroll without actually getting paid is irrelevant. USCIS evaluates actual wage payment, not payroll classification.
4. Can I transfer my H-1B if my employer paid me $0?
In most cases, no. Lack of wage payment may break continuity, making H-1B portability difficult unless the worker takes clear proactive steps to “right the wrong.”.
5. What should I do if my employer suggests staying unpaid?
Consult an immigration attorney immediately. Accepting unpaid H-1B work can permanently damage your immigration record.
Reviewed By Immigration Attorney
Ancy S. Varghese is a U.S. immigration attorney with 19 years of experience at VisaPro Immigration Law Firm, specializing in employment-based immigration. She has extensive expertise guiding H-1B workers through complex wage and status compliance issues, including H-1B salary requirements, benching, layoffs, transfers, portability, and employer misconduct. Ancy regularly advises professionals on how to maintain lawful H-1B status, avoid inadvertent violations, and navigate wage-based compliance pitfalls that can jeopardize future transfers, extensions, or green card eligibility.
Need help determining whether your H-1B status was compromised or whether a lawful recovery strategy still exists?
VisaPro has successfully guided professionals through the most complex wage-violation H-1B cases, restored eligibility after employer misconduct, and protected future green card options.
Schedule your free visa assessment today before critical timelines expire.
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