Undocumented Workers Entitled to Decent Pay After Visa Denial and Termination
By Attorney Joel Bander
So, you have been working for about a year for an employer who has sponsored you for a H1-B or Labor Certification. You have been paid a flat weekly fee less than the minimum wage. You are working more than 40 hours a week and are not getting time and one-half. They have promised that once your visa application has been approved that then they will pay you at least a minimum wage, but that you should be grateful that they are hiring you illegally and sponsoring you.
‘Don’t complain,’ they say, because we could cancel your employment visa application and terminate you.
So, you wait.
Then, after all that waiting, and working for next to nothing your employment visa gets denied and your employer terminates you. Often, they will just start the same cycle over again, victimizing another hopeful alien.
The reality is that they never intended for the application to be successful.
And to make matters worse, you are the one who has paid the lawyer for this ineffectual visa petition and/or an employment referral agency for finding the employer, and the employer required you to use that attorney as a condition for the undocumented employment and bogus visa application. What does that mean? Often, there is an ‘arrangement’ between the unscrupulous employer and unethical attorney/employment agency because an objective attorney would have told you that the visa application has no merit.
Luckily, you have recourse. California, and most other states, has very employee-conscious wage and hour laws. These laws require that every worker, (with few exceptions) regardless of whether they are documented or undocumented, receive minimum wage and time and one-half for over time. If the employer has not paid them they are then liable for these amounts, interest and penalties. And they have to pay the worker’s attorneys fees! This means that even though your unpaid wages may only total $5000-8000, an amount usually considered too small for an attorney to handle, the interest, penalties and attorney fees under law completely reverse that economic inequity.
And do not worry if you were paid only in cash. That is actually a separate, actionable labor claim!
Sometimes, these claims can total over $50,000! $300 owed a week over a year or more plus interest and penalties can really add up!
And even though the example above discusses workers who have been sponsored by their employer, any worker is entitled to these benefits.
‘But attorney’, I hear often, ‘the employer said h e will turn me in to the USCIS if I sue him.’ This is an empty claim. The USCIS is working with the Labor Department to go after employers who abuse their employees as described in the column. And the employer is only exposing their own crimes by reporting the circumstances to a federal agent.
Also, in California, the worker’s undocumented status is not even admissible in the court proceeding. The judge has been instructed by the legislature to not consider that fact, and the jury will never hear you are undocumented. Indeed, the employer’s lawyer cannot even ask you about your immigration status.
And let us not forget that money you have paid the attorney. You have a right to be reimbursed if there was no basis for the petition in the first place. In Los Angeles, and most other counties, the County Bar Association has a cheap and quick fee arbitration system that all attorneys are required to participate in. Once you win it is the attorney who must file a lawsuit to stop the refund of fees.
(Atty. Joel R. Bander has over twenty five years of litigation experience. He has successfully handled numerous cases before Federal, State, Civil, and Criminal Judges and has participated in hundreds of arbitrations and trials. His office is in downtown Los Angeles Office: address: 801 S. Grand Avenue, 11th Floor, Tel: 213-873-4333 , Email: firstname.lastname@example.org, www.banderlaw.com)