Me myself in the same situation, but my co. is running my payroll since december. As far as it is concerned not sure, but have to have payroll to run which hearing, to be in status. I'mnot 100% , and got an ultimatum ki to go home or change status, if couldn't grab a job in this damn time..within Feb.

nissan2006 · Feb 4, 2009 2:57 PM

This is a very important subject.. I have also seen so many people not having project in H1B. I do not think that causes any status problem. I guess it will cause problem when you eventually decide to go back and get stamped.But I am not sure. People please help us understand this status issue and if you are in bench between project -does that also causes problem in your status? Please help.

chanda_1 · Feb 4, 2009 3:04 PM

Normal 0 false false false MicrosoftInternetExplorer4 /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} As per the Immigration and Nationality Act §212 (n)(C)(vii)(I)(II)(III), the employer must begin paying the employee the stated wage within 30 days of entry, or 60 days from the Change of Status application if the employee is already in the U.S.; and, the employer may not “bench” a full time or part time H-1B nonimmigrant worker due to lack of work.  Federal Register / Vol. 64, No. 2 / Tuesday, January 5, 1999 What Does the ACWIA Require of Employers Regarding Payment of Wages to H–1B Nonimmigrants for ‘‘Nonproductive Time’’? In response to concerns and information about many situations in which H–1B workers were brought for employment in the United States but were then ‘‘benched’’ in a nonproductive status and paid little or none of the required wages, Congress enacted an explicit requirement— consistent with the Department’s regulation—that the employer pay wages to an H–1B worker in ‘‘nonproductive status’’ in certain circumstances. This obligation is effective ‘‘after the H–1B worker has entered into employment with the employer,’’ but otherwise not later than 30 days after the worker’s date of admission into the U.S. (if entering the country pursuant to the petition) or 60 days after the date the worker ‘‘becomes eligible to work for the employer’’ (if already present in the country when the petition is approved). The Department is considering whether the H–1B worker ‘‘enters into employment’’ when he first makes himself available for work, such as, for example, by reporting for orientation or training, or when he actually begins receiving orientation or training or otherwise performs work or comes under the control of his employer. Once the worker ‘‘enters into employment’’ (or after the 30 or 60 day period expires), the ‘‘benching’’ rules apply. Subject to the qualifications discussed below, an H–1B worker who is already present in the U.S. is considered by the  department to be  ‘‘eligible to work for the employer’’ (and thus covered by the ‘‘benching’’ rules) upon the completion of the visa issuance process; matters such as the worker’s obtaining a State license would not be relevant to this determination. In a nutshell, the ‘‘benching’’ provisions forbid an employer paying an H–1B worker less than the required wage for nonproductive time, except in situations where the nonproductive status is due either to the worker’s own initiative or to circumstances rendering the worker unable to work. The Department’s enforcement experience has demonstrated that some employers bring H–1B workers into this country and then, for a variety of reasons, ‘‘bench’’ the workers in non-productive status and fail to pay them the wages attested on the LCA. Most frequently,such ‘‘benching’’ occurs where the employer lacks work to assign to the H–1B worker, or the worker is engaged in training or development activities (such as orientation in the employer’s operations or studying for a licensing exam). It is entirely appropriate—as Congress recognized in the ACWIA enactment—for an employer to be prohibited from evading its wage obligations to such workers, who are under the employer’s control and entitled to the LCA-attested wages. The ACWIA provisions recognize, however, that the employer should not be liable to pay wages for the worker’s time which is nonproductive for reasons unattributable to the employer, such as the worker’s hospitalization or requested leave-of-absence (consistent with the conditions related to the H–1B worker’s maintenance of legal status in the U.S.). Provisions where the employer is not required to pay the H-1B employee due to the employee’s own reasons 64 Fed. Reg. 647 ATTACHED - The ACWIA provisions recognize, however, that the employer should not be liable to pay wages for the worker’s time which is nonproductive for reasons unattributable to the employer, such as the worker’s hospitalization or requested leave-of-absence (consistent with the conditions related to the H–1B worker’s maintenance of legal status in the U.S.). 64 Fed. Reg. 647 - The regulation does not require payment of such wages where the nonproductive status is due to reasons unrelated to employment (such as the worker’s voluntary request and convenience or non-work-related circumstances rendering him/her unable to work), unless such payment is required by INS as a condition of the H–1B workers’ continued maintenance of lawful status in the United States, or is required by some other statute, such as the Family and Medical Leave Act. Thus, the required wage need not be paid to the worker who—on  his/her own initiative—requests ‘‘time off’’ to conduct research on matters unconnected to his/her employment, or requests a delay in his/her first day of work in order to have an  opportunity to tour the U.S. before undertaking duties of employment. However, the employer would not be relieved of the wage obligation to H–1B worker(s) for any required leave of absence, even if such leave of absence includes U.S. workers.  65 Fed. Reg.  80219 ATTACHED - 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, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.). Payment need not be made if there has been a bona fide termination of the employment relationship. INS regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and require the employer to provide the employee with payment for transportation home under certain circumstances (8 CFR 214.2(h)(4)(iii)(E)). - Federal Register / Vol. 65, No. 245 / Wednesday, December 20, 2000 / Rules and Regulations DOL's Comments regarding Unpaid Leaves of Absence at an H-1B Employee's Request Are in Error: With regard to unpaid leave, DOL states in the Preamble that the Department will not "relieve an employer from liability simply because the employee agreed to periods without pay in the employment contract." 65 Fed. Reg. at 80171. The statute provides no authority for such a provision, which unreasonably interferes with the freedom of U.S. employers and H-1B workers to negotiate fairly and enter into arms-length agreements for terms and conditions of employment that would otherwise comply with DOL regulations. Many employment agreements provide for unpaid disciplinary leave. Accordingly, if an H-1B worker accepts an offer of employment that includes provisions for unpaid disciplinary leave, and is put on disciplinary leave without pay pursuant to the terms of the employment agreement, it should not be considered "nonproductive status due to a decision of the employer" because the H-1B worker agreed to the terms of employment and it was the act of the H-1B nonimmigrant that caused the disciplinary action under the employment agreement. Since many of the provisions of ACWIA require employers to treat H-1B workers in the same manner as U.S. workers, such as offering the same benefits etc., it is inconsistent with these provisions to require employers to discipline H-1B workers in a different manner from U.S. workers when U.S. workers are subject to disciplinary unpaid leave. Requiring U.S. employers to discipline H-1B workers in a different manner than it disciplines similarly employed U.S. workers does not further the stated goals of protecting H-1B and U.S. workers and does nothing to improve the competitiveness of the U.S. workforce. - - "AILA InfoNet Doc. No. 01051407 (posted May. 14, 2001)" See Link [http://www.aila.org/content/de...

santoshgiri · Feb 4, 2009 7:05 PM

In nutshell, If you can prove that the unproductive period was pursuant to your own request for personal reasons such as : disability, FMLA Leave, tourism, leave of absence for medical reasons etc and you have a leave approval letter from the employer, you are fine for the period leave has been approved. Otherwise, it will be almost impossible to document your H-1B transfer to another company. If you intend to change your status to your previous visa status, due to unavailability of projects and benching (the employer's error) - you must file for a change of status asap without further delay. Though technically speaking a  benched employee is out of status, she may file a formal complaint against the employer claiming for the BACKWAGES as well. A copy of such complaint can be submitted together with your request to reinstate your previous nonimmigrant status as a Nunc Pro Tunc Request.

santoshgiri · Feb 4, 2009 7:12 PM

You want to have all the options available explored. Don't forget Talent Nepal

wheel · Feb 5, 2009 9:54 AM

Guys/gals I absolutely agreed with Santoshgiri's thread. So it's better to manage early with more precautions. Thanks

everest2 · Feb 5, 2009 10:30 AM