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Out-Of-Status/Benching Of H-1Bs
December 13, 2012

Benching usually refers to situations where the H1B beneficiary is not working for the H1B employer.  If such unemployment is due to lack of work on the part of the employer, then the employee should be paid the required wages according to the LCA.

But if the employee is on leave at his/her own request, then of course, the employment contract, if any, dictates whether the salary is paid or not.  But such claims of “unpaid leave of absence” cannot be used unless it can be proven that the employee initiated the request for leave.  A critical question to be answered would be whether the employee ever “returned” from such leave!  Also, if such leave is forced upon by the employer on the employee, then it is obviously not a voluntary act by the employee.

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