Benching happens when an H-1B employer, often a consulting or staffing firm, has no client project for a worker and stops paying until the next assignment. Labor Department rules prohibit it. If an H-1B worker "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)," the employer "is required to pay the salaried employee the full pro-rata amount due" (20 CFR 655.731(c)(7)(i), 2025 edition).
As of October 26, 2026, these rules are unchanged, and they matter more as layoffs and project gaps rise. This guide explains when wages are owed, when they are not, and what workers can do.
- An H-1B employer must pay the required wage for the entire period of authorized employment.
- If the worker is not working because of the employer's decision, such as lack of assigned work, the full wage is still owed.
- Wages are not owed for time off at the worker's own request or when the worker cannot work, such as medical leave, subject to benefit plans and FMLA.
- Pay must start when the worker enters into employment, and no later than 30 or 60 days after the worker becomes eligible to work.
- Wage obligations end only with a bona fide termination, which includes notifying USCIS and, for dismissals, offering return transportation.
- Aggrieved workers can file a Wage and Hour Division complaint within 12 months of the violation.
What does the employer promise on the LCA?
To pay the required wage for the whole period. The employer attests "that, for the entire period of authorized employment, the required wage rate will be paid to the H–1B nonimmigrant(s)," meaning "the greater of the actual wage rate... or the prevailing wage" (20 CFR 655.731(a)). The wage requirement also covers "benefits and eligibility for benefits" on the same basis as US workers.
The obligation follows the occupation on the LCA. If the worker ends up doing a different job, "the employer's required wage obligation is based on the occupation identified on the LCA" (20 CFR 655.731(c)(8)). Our guide to prevailing wage levels explains how that wage is set.
When must the employer pay for time without work?
Whenever the gap is the employer's doing. The rule covers 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 the exceptions. Salaried workers get "the full pro-rata amount due"; hourly workers get pay for "a full-time week (40 hours or such other number of hours as the employer can demonstrate to be full-time employment)" at the required wage (20 CFR 655.731(c)(7)(i)).
For part-time LCAs, the employer must pay at least the hours stated on the I-129, or the average hours worked if a range was given.
When can pay stop?
Only in limited situations. Wages need not be paid when nonproductive status is "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)" (20 CFR 655.731(c)(7)(ii)). Even then, the exception applies only if the period "is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act," so paid leave policies and statutes still control.
| Situation | Wages owed? |
|---|---|
| No client project, waiting for assignment | Yes |
| Waiting for a license or permit the job requires | Yes |
| Personal vacation the worker requested | No |
| Medical or maternity leave | No, unless a benefit plan or statute requires pay |
| After a bona fide termination | No |
When does pay have to start?
From the moment the worker comes under the employer's control. A worker "enters into employment" when they "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" (20 CFR 655.731(c)(6)(i)).
Even without that, the employer must start paying "30 days after the date the nonimmigrant first is admitted into the U.S. pursuant to the petition," or, for someone already in the United States, "60 days after the date the nonimmigrant becomes eligible to work for the employer" (20 CFR 655.731(c)(6)(ii)).
What counts as a real termination?
A bona fide one. "Payment need not be made if there has been a bona fide termination of the employment relationship," and the rule points to DHS regulations that "require the employer to notify the DHS that the employment relationship has been terminated so that the petition is canceled" and "require the employer to provide the employee with payment for transportation home under certain circumstances" (20 CFR 655.731(c)(7)(ii)).
On the DHS side, if the employer no longer employs the worker, it "shall send a letter explaining the change(s) to the director who approved the petition" (8 CFR 214.2(h)(11)(i)(A), eCFR), and it is "liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission" (8 CFR 214.2(h)(4)(iii)(E)). An informal message that you are on the bench until further notice is not a bona fide termination. If you are laid off, our guide to what to do in the first 60 days covers your options.
How must wages be paid?
Through real payroll. Cash wages count only if they are "shown in the employer's payroll records as earnings for the employee, and disbursed to the employee, cash in hand, free and clear, when due," and reported to the IRS with withholding (20 CFR 655.731(c)(2)). For salaried workers, wages are "due in prorated installments... paid no less often than monthly" (20 CFR 655.731(c)(4)).
How do you file a complaint?
With the Wage and Hour Division. "No particular form of complaint is required," but it must be written or reduced to writing and "set forth sufficient facts" for the Division to find reasonable cause, a determination made "within 10 days" (20 CFR 655.806(a), eCFR). "A complaint must be filed not later than 12 months after the latest date on which the alleged violation(s) were committed" (20 CFR 655.806(a)(5)). ## What if the employer retaliates?
DHS rules give some protection. If a petition for an extension or change of status includes "credible documentary evidence" that the worker "faced retaliatory action from their employer based on a report regarding a violation of that employer's labor condition application obligations," USCIS may treat a related loss of H-1B status as due to "extraordinary circumstances" (8 CFR 214.2(h)(20), eCFR). That can help a worker who reported benching and then lost status keep their options open with a new employer. Keep copies of every complaint and every response.
What this means for you
- Keep your pay stubs, offer letter, LCA and I-797, so you can show the required wage.
- If you are told to wait without pay for a project, ask in writing whether you have been terminated.
- Track every unpaid period with dates; the 12-month complaint window runs from the latest violation.
- If you are terminated, confirm the employer has notified USCIS and offered return transportation.
- Consider whether an H-1B transfer to a new employer is the faster fix; see our guide to H-1B transfers.
Where to start
If you want a route that does not depend on one employer's projects, our free evaluation at /evaluate/ maps your record against the O-1A, EB-1A and EB-2 NIW standards, and Frank, our AI assistant at /frank, finds real opportunities to strengthen it. Petitions are reviewed and filed by our partner law firm, Lai & Turner.
Sources
All checked October 26, 2026.
- 20 CFR 655.731 (govinfo, 2025 edition; unchanged since). Required wage; payroll; installments; entering employment; nonproductive status; bona fide termination; LCA occupation.
- 20 CFR 655.806 (eCFR, current text). Complaints and the 12-month deadline.
- 8 CFR 214.2(h) (eCFR, current text). Notice of termination to USCIS; return transportation; retaliatory action claims.
Frequently asked questions
Is it legal for an H-1B employer to bench me without pay?
No, if you are benched because of the employer's decision. The Labor Department rule says that when an H-1B worker is in nonproductive status due to a decision by the employer, for example because of lack of assigned work, the employer must pay the full pro-rata salary or a full-time week at the required wage. The obligation applies for the entire period of authorized employment on the labor condition application.
When can an H-1B employer stop paying me?
When the nonproductive time is due to conditions unrelated to employment at your voluntary request and convenience, such as personal travel or caring for an ill relative, or that make you unable to work, such as maternity leave or an injury, subject to the employer's benefit plans and laws like the FMLA. Payment also stops after a bona fide termination of employment.
What counts as a bona fide termination of an H-1B worker?
The rule says payment need not be made after a bona fide termination of the employment relationship, and points to DHS rules requiring the employer to notify DHS so the petition is canceled, and to pay return transportation in some cases. In practice, telling a worker they are terminated while keeping the petition active and unpaid can leave the wage obligation running.
How do I file a complaint about H-1B benching?
With the Labor Department's Wage and Hour Division. No particular form is required, but the complaint must be in writing or reduced to writing, and it must set out enough facts to show reasonable cause. It must be filed no later than 12 months after the latest date of the alleged violation. The Division decides within 10 days whether to investigate.
Does my H-1B salary have to be paid as a salary, not as bonuses?
For salaried workers, the required wage is due in prorated installments paid at least monthly. An employer can use other nondiscretionary payments, such as a production bonus, to help meet the required wage only if it documents them. Payments must appear in payroll records, be reported to the IRS with withholding, and be paid free and clear when due.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
