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dd_sh
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 H1B problem!!!!
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Posted on 10-28-09 10:45 AM     Reply [Subscribe]
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Hi Guys,


I need an urgent help. I am on H1B and was working on a project through an american consulting firm. My project got over and my company told me that they will hold my H1 for a while but will not pay me on this period.

As I know I will be OOS from the day when my payroll is not running.

I am trying to find options what should I do for a now to save my status. If you guys have similar experience or any suggestion.

Please Please share !!

Thanks

 
Posted on 10-28-09 11:45 AM     Reply [Subscribe]
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"My project got over and my company told me that they will hold my H1 for a while but will not pay me on this period. "

As you are aware that u have to be paid in H1B all the time and "Benching" is illegal.File I-539 and change your status..Spend few bucks and Consult an immigration lawyer ASAP..



 
Posted on 10-28-09 12:15 PM     Reply [Subscribe]
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Hi  pyaradeshbasiharu

I was expecting for your reply.

I am aware that they have to pay me all the time, but for them its easy to revoke my H1 then instead of paying me during the bench. So they told me they are doing favor of not revoking H1 right away.

Right now I don't have valid I-20 right, so I can't file for COS to F1. Next one is transferring H1 to some desi consultancies, but these days denial rate is too high, until they have some active project on hand.

Next one should be Change to B2, I am not sure what is its approval rate is.

Thanks for suggestion




 
Posted on 10-28-09 12:49 PM     Reply [Subscribe]
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"So they told me they are doing favor of not revoking H1 right away."

it doesn't matter whether or not they revoke it, u have to get paid all the time..Normally they will revoke it to be in safe side so that they don't owe u back wages..

"Right now I don't have valid I-20 right, so I can't file for COS to F1"
u r in H1B , why do you need Valid I20 for?  Unless you join a college , they will Issue you I20 and then u can do COS to F-1.

"Next one is transferring H1 to some desi consultancies, but these days denial rate is too high, until they have some active project on hand."
Yes u r right, until and unless u have a Project in hand , it is more likely that u will be denied the transfer..

"Next one should be Change to B2, I am not sure what is its approval rate is."

if u have all the documents in hand and a proof that u were maintaining status (Having all the paystubs during this period), hopefully it will go through. But spend few bucks with immigration lawyer for a brief consultation ASAP.


BTW,

Can you give me a little detail abt ur background..What field r u working on right now?





 
Posted on 10-28-09 1:25 PM     Reply [Subscribe]
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File I-539 and change your status..Spend few bucks and Consult an immigration lawyer ASAP..


 


Pyaradeshbashi ..I am also same phase ..my employer told me he will run the pay check for one month only i am working as BA since one years..what I supposed to do ...please suggest yar..


 
Posted on 10-28-09 1:41 PM     Reply [Subscribe]
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Hi  pyaradeshbasiharu

Check your inbox

 
Posted on 10-28-09 2:17 PM     Reply [Subscribe]
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Ocinboy,

as long as u r getting paid u should be fine..However once there is  no payroll generated u r technically out of status..And "DON'T EVER TRY TO GENERATE PAYROLL FROM YOUR OWN POCKET"..

If he is not going to pay u after 1 month then file for COS to Another Non-Immigrant status ASAP..



 
Posted on 10-28-09 4:00 PM     Reply [Subscribe]
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what is that COS -Non Immigrant status...can we get that from USCIS ...website..
 
Posted on 10-28-09 4:18 PM     Reply [Subscribe]
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Check for Form I539 from USCIS website
 
Posted on 10-29-09 5:01 PM     Reply [Subscribe]
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Hi pyaradeshbasiharu,


Do you have link from DOL where it stated that H1B can not take unpaid leave or they can be on so called bench period.

I have to show that document to my employer

Thanks,
dd_sh

 
Posted on 10-29-09 6:28 PM     Reply [Subscribe]
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dd_sh,

A person can take unpaid leave while in H1B status but it should not be done forcefully by any employer(Like when there is no project )..It he willfully does so then it's called benching..A person can take unpaid leave if She is pregnant/having some medical condition which forbids him to do his job properly..


Look for the 1182(n)(1)(A) section of ur LCA..It clearly mentions it..

 
Posted on 10-29-09 11:46 PM     Reply [Subscribe]
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Here is that section,

but it did not mention anything as we discussed :(

(n)

Labor condition application




(1)

No alien may be admitted or provided status as an
H–1B nonimmigrant in an occupational classification unless the employer
has filed with the Secretary of Labor an application stating the
following:




(A)
The employer—




(i)
is offering and will offer during the period of
authorized employment to aliens admitted or provided status as an H–1B
nonimmigrant wages that are at least—




(I)
the actual wage level paid by the employer to all
other individuals with similar experience and qualifications for the
specific employment in question, or






(II)
the prevailing wage level for the occupational classification in the area of employment,






whichever is greater, based on the best information available as of the time of filing the application, and






(ii)
will provide working conditions for such a
nonimmigrant that will not adversely affect the working conditions of
workers similarly employed.

 
Posted on 10-29-09 11:52 PM     Reply [Subscribe]
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"An employer is in violation of the LCA requirement at §1182(n)(1)(A) for placing an H-1B nonimmigrant in unpaid nonproductive status due to a decision by the employer based upon factors such as lack of work or due to the H-1B nonimmigrant’s lack of a permit or license.  The current U.S. CIS H-1B regulations specify that if a license is required to perform in a position, the employee must have the license before the petition will be approved.  If the position changes and later requires a license, the employer must continue to pay the employee the required wage while the employee awaits licensure"

"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. 

 

“Benching” is the term used for temporarily laying off an employee or putting the employee in nonproductive status without pay or with reduced pay during periods of no work.  This practice is most common in the service of contract industry (i.e., recruiting firms/companies).  In other words, benching is considered to be an employer’s failure to pay the nonimmigrant worker in H-1B status his/her full rate of pay based upon the employer’s lack of work, periods between contracts, or after a downturn in business.  In all these situations, the INS requires the employer to pay the H-1B worker his/her full rate of pay as stated on the H-1B visa petition."




 


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