401k cancelled because of visa status.

[TN_worker]

What is the name of your state (only U.S. law)? WA

I been employed under a TN visa for almost 4 years on an american company. When I was employed I was offered a 401(k) with a company match and additionally a pension plan of 3% of my salary. Today me and all "non-resident aliens" employees were informed that they had an internal error and that they were not allowed to provide us such plan because they were not following the company plan document. So all company match money will be deducted from our accounts, we will no longer have a 401(k) and a check of our contributions will be mailed to us. I am losing about 6% of my future income and about 12k of company match.
Is it legal to do this without compensating the money we lost? Wouldt it be discriminatory to provide 401k only to US citizens?What is the name of your state (only U.S. law)?

 

[pattytx]

You're getting YOUR contributions back plus, presumably, interest. The employer must follow the plan document or risk jeopardizing the tax-deferred status of the plan altogether.

U.S. Citizens only eligible? Maybe illegal; include U.S. resident aliens and would not be illegal. Since you are neither, the plan rules rule. Visa status is not a protected class.

 

[TN_worker]

They did this with H1B workers too. The letter they gave us states that "Expatriates / Non-Resident Aliens" without a green card are not elegible to participate in the plan.
They told us they knew this since 2007 but we were not informed and allowed us to contribute to the plan.
Company also has also more non resident aliens than us residents (about 70% of workers ar non resident aliens and only 30% are US residents).


I understad they were not following the plan rules, but my income has been reduced 6%. But now i feel they took from me 12k without any kind of compensation I am considering taking legal action or at least get them audited because they have so many visa workers because no americans want to work because of the low wages.

 

[pattytx]

What did you expect them to do, continue violating the plan rules? There just won't be a deduction in the future, your gross pay is not being reduced, your net pay is being increased.

 

[swalsh411]

If the plan says you can't participate then you wouldn't have a leg to stand on in any sort of legal action.

As long as your employer is following the law they can hire as many green card workers as they want.

 

[TN_worker]

They have way more TN and H1B visa workers than green card holders. People with gren card get 36 dlls per hour. Visa holders 26dlls.

Every year when we get raises americans get higher raises to stop them to go to other companies. They have had some problems with H1B visa renewals because they didnt met the salary requirements when they went to renew their visas, so they get raises to fill the requirements.

I guess as a TN visa holder im screwed =( better quit and go back home.

 

[TN_worker]

What did you expect them to do, continue violating the plan rules? There just won't be a deduction in the future, your gross pay is not being reduced, your net pay is being increased.

Dont get me wrong I have no law background and I thought it may be illegal, its sad is not. But really apreciate your help!!
I feel me and my coworkers were used as saving boxes and we are giving the company at least 750,000 dlls back, I expected them to share a part of that money with us .
On the other hand is more unfair for americans to have companies that bring foreign workers to do the same job with less benefits and a smaller salary.

 

[pattytx]

If you're talking about the employer match, you're "giving back" something you were never entitled to in the first place.

 

[TN_worker]

I been reading and some coworkers found out that for tax purposes since we have been for more than 183 days in USA for tax purposes we are resident aliens, Is there a difference between my migration status and my tax status? In case it is which one aplies to get benefits.

Thanks!

 

[pattytx]

All that means is that your income is subject to US income tax. A "resident alien" has a specific meaning, basically it means you have what used to be called a "green card" and is an intermediate step to becoming a US citizen; for discrimination purposes, a "resident alien" stands in the same place as a US citizen. It's more than just a non-US citizen who is living in the US.