The applicable regulations on “benching” (H-1B employees who have are ready and able to work) are set forth at 20 CFR §§ 655.731(c)(6) and (c)(7).  These regulations state in pertinent part:

(c)(6) Subject to the standards specified in paragraph (c)(7) of this section (regarding nonproductive status), an H-1B nonimmigrant shall receive the required pay beginning on the date when the nonimmigrant “enters into employment” with the employer.

(i) For purposes of this paragraph (c)(6), the H-1B nonimmigrant is considered to “enter into employment” when he/she first makes him/herself available for work or otherwise comes under the control of the employer, such as by waiting for an assignment, reporting for orientation or training, going to an interview or meeting with a customer, or studying for a licensing examination, and includes all activities thereafter.


(c)(7) Wage obligation(s) for H-1B nonimmigrant in nonproductive status—

(i) Circumstances where wages must be paid. If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), lack of a permit or license, or any other reason except as specified in paragraph (c)(7)(ii) of this section, the employer is required to pay the salaried employee the full pro-rata amount due, or to pay the hourly-wage employee for a full-time week (40 hours or such other number of hours as the employer can demonstrate to be full-time employment for hourly employees, or the full amount of the weekly salary for salaried employees)  at the required wage for the occupation listed on the LCA….

(ii) Circumstances where wages need not be paid. If an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period ….


Several decisions of the Administrative Review Board (ARB) of the DOL have discussed benching or no benching as it relates to training/orientation, awaiting licensing, awaiting a Social Security number, and voluntary non-productive time. See Administrator, Wage and Hour Division v. Greater Missouri Medical Pro-Care Providers, Inc., Case No. 2008-LCA-26 (Oct. 18, 2011), aff’d in pertinent part, ARB 12-015 (Jan. 29, 2014) (H-1B non-immigrants’ time for training and orientation while awaiting a license was compensable because it amounted to benching by the employer); Administrator, Wage and Hour Division v. University of Miami, Miller School of Medicine, ARB-10-090, 093 (Dec. 20, 2012) (time that H-1B workers needed to apply for and receive a Social Security number is compensable time as long as the employees are willing and able to work); and Administrator, Wage and Hour Division v. Intek Consulting, Inc., 2008-LCA-046 (May 6, 2009) (same). But see Rajan v. International Business Solutions, Ltd., ARB-0003-104 (Aug. 31, 2004) (time away from work to have surgery was voluntary non-productive time for the convenience of the employee); Arramreddy v. IK Solutions, Inc., 2006-LCA-00020 (Nov. 15, 2006) (time to take care of a family emergency was non-compensable voluntary, non-productive time.)

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