When an H1B employee is laid off or the employment is terminated before the end of the validity period, the employer has a duty to buy the foreign national return trip to his country or origin.

“Bench time” is the colloquial term for periods of unemployment, i.e., when the employer does not have a job for the employer, but not because of the fault of the employee. There is a misconception that an employer does not have to pay salary (or can pay a reduced salary) during such periods. Under the law, there is no such thing as unpaid bench time and the employer must pay the salary and wages according to the H1B Petition.

However, if the alien is not available to work for medical or any other reasons, then of course the employer does not have to pay the salary, if that is what the employment agreement with the alien states. Proper documentation of such periods should be accurately maintained.

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