H1B Visa: While on Bench

[zinfa321]

Hi,
I am on H1B visa. I have completed my last project and now on bench from mid of Nov'09. My employer (desi consultant) had asked me to send an Application for Unpaid leave so that he can maintain my H1b status. I sent a vacation letter for 2 Weeks and for which he has not paid me a bench salary. Now again he is asking me to submit another letter of unpaid vacation until the date I will get my next project.

My dilemma is how long should I entertain such requests from him and if in case I refuse to go on vacation what are my chances of being laid-off?

Will Employer loose any eligibility up on laid-off like no new H1/GC petition in short future?

Thanks in advance!

[thomachan72]

the only option you have is to look for a stable and good employer. your current employer is a consultant and trully speaking they can pay you only when you have a project. Since you are on H1b, however, they need to pay you continuously and not expect you to take leave without pay. do you have insurance during these periods?? You could break away from them and complain to the CIS.

[ivuser9]

Hi,
I am on H1B visa. I have completed my last project and now on bench from mid of Nov'09. My employer (desi consultant) had asked me to send an Application for Unpaid leave so that he can maintain my H1b status. I sent a vacation letter for 2 Weeks and for which he has not paid me a bench salary. Now again he is asking me to submit another letter of unpaid vacation until the date I will get my next project.

My dilemma is how long should I entertain such requests from him and if in case I refuse to go on vacation what are my chances of being laid-off?

Will Employer loose any eligibility up on laid-off like no new H1/GC petition in short future?

Thanks in advance!

Is your employer indsoftusa inc from chicago? Thnx

[hibworker]

Hi,
I am on H1B visa. I have completed my last project and now on bench from mid of Nov'09. My employer (desi consultant) had asked me to send an Application for Unpaid leave so that he can maintain my H1b status. I sent a vacation letter for 2 Weeks and for which he has not paid me a bench salary. Now again he is asking me to submit another letter of unpaid vacation until the date I will get my next project.

My dilemma is how long should I entertain such requests from him and if in case I refuse to go on vacation what are my chances of being laid-off?

Will Employer loose any eligibility up on laid-off like no new H1/GC petition in short future?

Thanks in advance!

If you refuse to go on vacation, your employer will either have to pay you (which most likely they won't) or fire you (which most likely they will). Employer will not lose any eligibility since they always paid you until you requested unpaid leave. Now they are only liable to provide you with one way air fare to your home country.

You can look for another employer who will sponsor your H1. Thankfully by bending the rule your employer has kept your status alive, allowing you to stay and move to a different job. If you would have been laid off that would have put you out of status requiring you to leave the country immediately.

[venky321]

Expect that forcing an employee to take a vacation is considered breaking the law these days. I think the OP would have been better off filing for a B2 visa while looking for a new project or job.

[hibworker]

Expect that forcing an employee to take a vacation is considered breaking the law these days. I think the OP would have been better off filing for a B2 visa while looking for a new project or job.

Absolutely... I think any standard company would have simply terminated him the day they didn't had work for him and send him packing home. By 'forcing' vacation ... they have provided him with an opportunity to stay in US (although illegally).

Filing for B2 (visitor) visa and look for a new project / job is also 'breaking the law' since B2 is a tourist visa not hunt for a job visa.

[venky321]

I am not sure, but I did read someplace that the USCIS would consider 'looking for a job' a valid reason to grant a change of status to B2 for someone on an H1B visa. Some lawyers say it can be done, while others say it can't.

However there is no harm in applying for a B2 visa; since it usually takes a couple of months for it to process in which time one would be in legal status in the US. It is not realistic to expect people who have been in the US for many years to pack up and leave in a day. One can also say they need a month or so to wrap up their affairs like house, car, bank accounts...etc.

If one does find a new job in the window period say two months, I know it is legal to transfer a COS back to an H1B. While some might argue its also bending the intent of the B2 visa; it atleast shows that one is trying to keep up with the law; instead of going on bench which is illegal.