MANY aliens have been working for an extended period for an employer who sponsored them for a H1-B or Labor Certification. They are then paid less than the minimum wage, or a flat weekly fee. If they are working more than 40 hours a week they are entitled to one and one-half times the minimum wage. If these workers are not receiving at least minimum wage and time and one-half for overtime you probably have a ‘wage and hour’ claim.
Obviously, these aliens are working illegally for their sponsoring employer. So they are scared to complain about not receiving the minimum wage, being told that they should be grateful that they are hiring the alien illegally and sponsoring you. These employers often threaten to cancel the employment visa application and terminate the alien if they complain.
Often, aliens are sent to these employers by unscrupulous employment agencies, who often coordinate their activities with unethical attorneys willing to process the employment visa applications that have no merit. The alien often has to pay these employment agencies and their appointed lawyer for the ‘privilege’ of working at below minimum wages. Indeed, the employment agency requires the alien to use a particular law firm, which is a powerful indicia that the employment agency and law firm are working together.
Sometimes that employer gets a ‘kick back’ from employment agency.
Often, after all that waiting, and working for next to nothing the employment visa gets denied. The employer tells the alien they are sorry, and terminates the employee. Often, they will just start the same cycle over again, victimizing another hopeful alien.
The reality is that it is not unusual that the employer, employment agency and attorney never intended for the application to be successful.
However, even illegal aliens have recourse under California labor laws. These laws require that every worker, (with few exceptions) regardless of whether they are legal or illegal, 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 the employee has unpaid wages totaling only $5 - 8 thousand, an amount usually considered too small for an attorney to handle, the interest, penalties and attorney fees under law completely reverse that economic inequity.
Moreover, if does not matter if the employee was 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!
In the worst cases, immigration authorities provide a special visa to the victimized illegal alien so that they can temporarily be in status and have work authorization! In fact, this new status allows an alien a basis to find a new, righteous employer and adjust to work legally even after the special visa expires. Immigration authorities want to know about these cases and prosecute both the unscrupulous employer and unethical attorney.
So do not be afraid. Illegal aliens can pursue the employers and not fear retaliation.
* * *
Bander Law Firm, LLP has been providing immigration services for over 15 years and has multilingual staff. Feel free to call Bander Law Firm, LLP at (213) 873-4333 to schedule your consultation regarding your legal concerns. Bander Law Firm provides a full range of legal services in the fields of Immigration, Mortgage Litigation, Personal Injury, Bankruptcy, Criminal and Removal Defense, Civil and Business Litigation, Wage and Hour Litigation and Class Action lawsuits.
Bander Law Firm, LLP Downtown office address: 1055 W. 7th Street, Suite 1950, Los Angeles, CA, 90017. Tel: (213) 873–4333 Fax: (213) 873–4334. San Gabriel Office address: 1045 E. Valley Blvd., #A215, San Gabriel, CA 91776. Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
( Published January 20, 2010 in Asian Journal Los Angeles p. B3 )
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