Nonimmigrants working in the United States on temporary work visas are granted a number of employment rights regardless of their visa category. While workers in some categories, such as H-2A temporary agricultural workers and J category au pairs, have additional rights, all nonimmigrants working in the United States are protected by six basic rights.
These six basic rights are:
TO BE PAID FAIRLY.
Just like employees who are U.S. citizens, workers on temporary visas have the right to be paid at least the federal minimum wage for most jobs as well as for all work they perform. These individuals may be paid a higher rate if they work in a state, city, or county with a greater minimum wage, or if they are governed by an employment contract or visa program that requires higher pay. Nonimmigrant workers are also eligible for overtime at one-and-a-half times their hourly rate for any hours worked over 40 per week.
While employers may deduct some items from a nonimmigrant’s paycheck, it is generally considered illegal if the deductions result in the worker receiving less than the legally required wage rate after the deductions. Employers usually cannot deduct for uniforms, required tools, supplies, recruitment fees, and the like. Lawful deductions include those chosen by the employee, such as health insurance, as well as any court-ordered items like child support or alimony.
Workers on temporary visas, with few exceptions, are required to pay state and U.S. federal income and employment taxes, including Social Security and Medicare. These are often withheld directly from the worker’s paycheck.
TO BE FREE FROM DISCRIMINATION.
Nonimmigrant workers cannot be treated differently because of their:
- National origin or ethnicity
- Genetic information (including family medical history)
- Pregnancy or nursing status
If a nonimmigrant worker on a temporary visa is discriminated against, they can file a charge with the Immigration and Employee Rights Section of the Justice Department. Depending on the charge, the Equal Employment Opportunity Commission may instead end up being the agency to investigate the claim. Employers cannot retaliate against a nonimmigrant employee who files a claim.
TO BE FREE FROM SEXUAL HARASSMENT AND EXPLOITATION.
Employers cannot make sexually offensive remarks to nonimmigrant workers nor sexually exploit these individuals. Sexual exploitation includes demanding a sex act, touching an employee in a sexual way, or forcing, tricking, or coercing a nonimmigrant employee to perform a sex act.
TO HAVE A HEALTHY AND SAFE WORKPLACE.
Workers on temporary visas are guaranteed a safe and healthy workplace regardless of their job or industry. This means employers must pay for protective personal equipment for those who work with pesticides or dangerous chemicals. Workers are also entitled to training about hazards as well as health and safety standards in a language and vocabulary they understand.
If an accident happens, nonimmigrant workers have the right to report work-related injuries and illnesses, and in most cases receive medical treatment paid for by their employer. These individuals may also be eligible for lost wages due to their illness or injury. To receive the medical treatment or lost wages, however, nonimmigrant workers may have to file for workers compensation.
TO REQUEST HELP FROM A UNION, IMMIGRANT, OR LABOR RIGHTS GROUP.
Most workers on temporary work visas have the right to join, start, or support a union in their workplace. When not working, they are free to attend speeches and other public events about wages and other working conditions. It is illegal for an employer to act against a nonimmigrant employee for any of these actions.
TO LEAVE AN ABUSIVE EMPLOYMENT SITUATION.
If a nonimmigrant worker is in an abusive employment situation, they have the right to leave. The U.S. government considers safety the No. 1 priority for all workers on temporary visas. While the worker’s visa status may no longer be valid, in many cases they can change their visa status or be hired by a different employer in order to stay in the United States.
The USCIS encourages any workers in an abusive situation to report the abuse. Abused workers also have the right to file a lawsuit against their employer while still employed or after leaving their job. It is illegal for an employer to retaliate against a nonimmigrant worker who either complains or files a lawsuit.
Depending on their visa category, nonimmigrant workers may be entitled to an employment contract, transportation costs, a minimum number of hours per work, and other rights. The U.S. Department of State’s Bureau of Consulate Affairs provides specific information on additional rights available to various categories of temporary work visas.
WE CAN ANSWER QUESTIONS ABOUT TEMPORARY WORK VISA RIGHTS
Our attorneys have combined experience of almost 100 years in immigration law and the green card application process. If you are on a temporary work visa and have questions about your rights, contact us at 404-850-939.
After consulting with you, we can give you peace of mind that you have taken the correct steps for sponsoring your employee and avoiding issues that could result in delay or denial.
Nisha K. Karnani was born in the United Kingdom to Indian parents and immigrated to the United States as a child. She earned her Bachelor of Arts with Honors in Economics from the University of North Carolina in 1998 and her Juris Doctor from the University of North Carolina School of Law in 2001.
Ms. Karnani has practiced immigration law exclusively since being admitted to the Georgia Bar in 2001. She was an Associate Attorney with Cohen & Associates beginning in 2001, a firm which merged and became the Antonini & Cohen Immigration Law Group in 2013. As a Partner at Antonini and Cohen, Ms. Karnani represents clients in employment and family immigration on issues. She also represents victims of domestic violence and other crimes in various immigration matters.