On 08.07.12 | In USCIS Blog, By USCIS Info
Temporary foreign workers and visitors are guaranteed certain rights during their stay in the U.S. Employers must respect these rights; failure to do so is punishable by federal law.
1. Right to Not be Retaliated Against
- Employees shall not be threatened or punished for protecting their given rights.
2. Right to be Paid
- Employees must be paid for all the work they do and must receive a minimum income of $7.25 an hour, the federal minimum wage.
3. Right Not to be Discriminated Against
- Employees must not be treated poorly on the basis of gender, race, national origin, color, religion, or disability.
- Employees should be offered equal pay and opportunity regardless of gender, race, national origin, color, religion, or disability.
- Employees shall not be forbidden to speak their native tongue and may only be required to speak English if it is pertinent to the success of the job.
4. Right Against Sexual Harassment
- Sexually harassment of men and women is strictly forbidden.
- Employers must not demand sexual acts from employees.
- Employers may not inappropriately touch, proposition, or otherwise offend employees in a sexual manner.
5. Right to a Healthy and Safe Workplace
- Clean and safe housing;
- Clean and accessible bathrooms;
- Potable water for drinking and washing; and
- Proper medical treatment if injured on the job.
- The employer is responsible for the payment of medical emergencies if the worker is injured on the job.
- If working with pesticides: the right to wash hands after using pesticides; the right to know when and where pesticides were used; workers must not be in the area when pesticides are being applied; and if safety equipment is necessary to mix and apply pesticides the employer must provide clean equipment that is in good condition.
6. Right to Join a Union and Bargain Collectively
- The employee has a right to join other workers and bargain for more rights and/or pay.
- The employee has the right to attend public speeches, rallies, and demonstrations.
- The employee has the right to join a union or other work organization.
7. Right to More Protections Under State Law
- Foreign workers are protected by many of the rights provided by state law.
8. Right to Leave an Abusive Employment Situation
- If abused by an employer, the employee has the right to leave the job without punishment and also to make a formal complaint or file a lawsuit against the employer. However, if the employee’s visa is employment-based, leaving the job may make the visa invalid and he/she will have to return home or find an alternate visa to remain in country.
All temporary foreign workers are protected by the above rights. However there are additional protections guaranteed within each visa category.
A-3, G-5, and B-1 Domestic Employee Visas
- Employers must provide an employment contract that complies with U.S. law. This contract must include:
- An agreement by the employer stating that he/she will not keep from the worker his/her passport, employment contract, or other personal property;
- An agreement by the employer to abide by all U.S. laws;
- An explanation of how the worker will be paid and how frequently; and
- A description of the worker’s duties, weekly work hours, holidays, sick days, and vacation days.
H-2A Temporary Agricultural Worker Visas
- The employer must provide a written description of the terms of the workers employment that includes:
- Work duration; and
- Transportation benefits.
- Minimum standard wage set by the government for hourly pay or pay by piece.
- The worker should not pay U.S. social security taxes or fees to a labor recruiter in his/her home country.
- Clean and safe housing provided by the employer at no charge.
- The employer must reimburse the worker for travel cost from the worker’s home to the place of employment after half the contract period has been completed and payment for the worker’s travel cost home after the contract is fully completed.
- The worker is to be guaranteed at least ¾ of the number of workdays stated in the contract period.
H-2B Temporary Non-Agricultural Worker Visas
- The employer must provide return transportation costs for the worker’s trip home if the work ends before the contract is up or if the worker is dismissed for reasons other than performance.
- The worker should not pay fees to a labor recruiter from their home country.
J-1 Exchange Visitor Visas
- The program must be a minimum of three weeks unless sponsored by the U.S. Federal government.
- The sponsor’s advertisement must accurately explain all costs, conditions, and restrictions of the program.
- The sponsor must give an orientation that includes information on:
- Description of the program and its rules;
- Travel and entry into the United States;
- Fees, and costs, including living expenses, healthcare, and insurance costs;
- Life and customs in the United States;
- Local resources;
- The sponsor’s address and the name and phone number of the person responsible for the visitor in the United States;
- Contact information for the Exchange Visitor Program Services; and
- The Department of State’s Exchange Visitor Program.
- If the visitor is a part of the Summer Work Travel program and does not have pre-placed employment, the sponsor must help him/her find work.
- If the visitor is in the U.S. for training or an internship, the sponsor must:
- Interview the candidate in person, by telephone, or by web camera;
- The sponsor must have a Training/ Internship Placement Plan (Form DS-7002) in place before the visitor can file for a visa;
- The sponsor must provide a written statement of the costs and fees of the program as well as living expenses in the U.S.;
- The training or internship must be at least 32 hours per week; and
- If the training or internship is in agriculture, the working conditions and wages must meet U.S. federal requirements for agricultural workers.
- The sponsor must ensure that the visitor has medical coverage.
- The visitor must apply for and obtain a Social Security number and the employer must report all tax withholdings using this number.
- Spouses and minor children who accompany J-1 visitors to the U.S. on J-2 visas may apply for work authorization but only if that income is not necessary to support the J-1 visitor.