Benching is a term used to describe when H-1B or L-1 visa holders are not actively working but remain employed by their sponsoring employer. It often occurs when an employer has no immediate work assignments for the visa holder. If you are an H-1B or L-1 visa holder or an employer sponsoring these workers, understanding the legal obligations regarding pay during nonproductive periods is essential to comply with U.S. immigration laws.
Table of Contents
- What Is ‘Benching’?
- Do Employers Have to Pay H-1B Workers During Benching?
- When Does the Obligation to Pay Begin?
- How Much Pay Is Required During Benching?
- When Does the Obligation to Pay End?
- Key Takeaways for Employers and Employees
What Is ‘Benching’?
Benching is when an employer does not assign work to an H-1B or L-1 visa holder for a certain period. This can happen for several reasons, including:
- Delays in project availability.
- Waiting for permits or licenses.
- Employer-requested nonproductive time (e.g., attending orientation or training).
It is important to note that benching due to the employer’s circumstances does not relieve them of their obligation to pay the required wage.
Do Employers Have to Pay H-1B Workers During Benching?
Yes, H-1B employers must pay the worker’s required wage even during nonproductive periods caused by employment-related conditions. This includes situations like:
- Lack of assigned work.
- Waiting for licensing exam results.
- Delays in obtaining work permits.
However, if the worker is not working for reasons unrelated to employment—such as voluntary time off, medical leave, or hospitalization—the employer is not obligated to pay during that period.
When Does the Obligation to Pay Begin?
The obligation to pay H-1B workers for nonproductive time starts under the following conditions:
- When the employee becomes available for work:
- For example, reporting to orientation or beginning training.
- 30 days after entering the U.S. (H-1B workers only):
- Even if they have not yet started work, employers must begin paying them within 30 days of entry.
- 60 days for workers already in the U.S. under H-1B status:
- This applies to workers who transfer employers or change roles. Payment must start within 60 days of approval from USCIS, regardless of whether they have started working.
How Much Pay Is Required During Benching?
The pay required during nonproductive time depends on the worker’s employment terms.
- Full-time salaried workers: Must be paid their full wage rate.
- Full-time hourly workers: Must be paid for 40 hours per week (or the employer’s defined full-time schedule).
- Part-time workers: Must be paid for the hours stated in the H-1B petition or at least the average hours worked within the approved range.
The required wage must meet or exceed the rate listed on the worker’s Labor Condition Application (LCA).
When Does the Obligation to Pay End?
Employers are no longer obligated to pay nonproductive wages after a bona fide termination of employment. This includes:
- Notifying USCIS that the worker’s employment has ended.
- Canceling the H-1B or L-1 visa petition.
- Offering to pay for the employee’s return transportation to their home country (if applicable).
Failure to follow these steps can result in legal penalties for the employer.
Key Takeaways for Employers and Employees
- Employers must pay H-1B workers for nonproductive time caused by work-related conditions.
- Payment begins as soon as the employee is available for work or within 30–60 days of their eligibility.
- Full-time and part-time employees must receive at least the wage listed on their LCA.
- Payment obligations end only after a bona fide termination, including notifying USCIS and offering transportation reimbursement.
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If you have questions about U.S. immigration laws and regulations, we invite you to contact our team at Richards and Jurusik for detailed guidance and assistance. We aim to provide the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people work and live in the United States. Please read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.
JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
