"We have no project right now, so no salary." If your H-1B employer said this to you, they broke federal law. Here's the regulation, your rights, and exactly how to fight back.
Under 20 CFR 655.731(c)(7)(ii), an H-1B employer "must pay the required wage to the H-1B worker for the entire period of authorized admission and employment, including any period when the worker is in non-productive status due to a decision by the employer."
This is not ambiguous. It has no exceptions for slow business, no client, project gaps, or mutual agreement.
Benching is a term for the practice, most common among IT staffing and consulting companies, of keeping H-1B workers on their visa roster between client projects without paying them. The employer maintains the H-1B status (keeping the worker locked to them through visa control) but does not assign work or pay wages.
It is called "benching" because the workers are "on the bench", available and waiting, but not earning. From a business perspective, it saves the employer money during idle periods. From a legal perspective, it is wage theft and a direct violation of the H-1B program requirements.
Benching is most common at: IT staffing firms that place H-1B workers at client locations, consulting companies between engagements, and healthcare staffing companies between facility assignments. But it can occur at any employer when there is a period with no assigned work.
The benching prohibition comes from the H-1B wage obligation regulations at 20 CFR 655.731. The key provisions are:
20 CFR 655.731(c)(7)(ii): The employer is not relieved of the obligation to pay the required wage to H-1B workers during non-productive periods caused by:
(A) A decision by the employer (including lack of work)
(B) Operational needs of the employer
(C) A temporary absence from work due to illness
Note: Non-productive periods caused by the worker's voluntary actions, such as authorized vacation, are different. Employers don't need to pay during voluntary leave as long as annual compensation isn't reduced below LCA wage.
Employer says 'no pay until next project' but doesn't let you resign without penalty
You are required to be 'available' during bench periods but receive no pay
Pay is delayed 'until client invoice is paid' or 'when the project starts'
Employer threatens visa revocation if you complain about missing pay
Employment agreement has a 'bench rate' clause below the LCA wage
Pay stubs show wage deductions for weeks with no client billable time
Annual salary appears correct but monthly payroll reflects bench deductions
Employer offers 'training pay' at a lower rate than LCA wage during non-client periods
If you've been benched without pay, calculate your back wages:
Sumit covers H-1B worker rights and DOL enforcement, helping international workers understand protections against wage theft and exploitative employer practices.