URGENT HELP ON H1 B to H4

[gopudeep]

hii

I entered US with a H4 visa which was till June 2007.and then applied for my H4 extension
and got it till May 2009.last year i applied for my H1 visa and got approved.I 94 i got with it is till May 2011.I didnt get any project and didnt have any paystubs.now i want to apply for my H4 extension along with my spouse H1 extension.
please explain...

[desi3933]

Originally Posted by gopudeep

hii

I entered US with a H4 visa which was till June 2007.and then applied for my H4 extension
and got it till May 2009.last year i applied for my H1 visa and got approved.I 94 i got with it is till May 2011.I didnt get any project and didnt have any paystubs.now i want to apply for my H4 extension along with my spouse H1 extension.
please explain...

What was the effective start day for H1?
Did you report for work?
Did you get any paycheck?
Did your employer notify your termination?

[gopudeep]

effective start date is oct 2008
i didnt work. i donot have any payslips.
what will happen if my employer terminates now

[desi3933]

Originally Posted by gopudeep

effective start date is oct 2008
i didnt work. i don't have any payslips.
what will happen if my employer terminates now

Did you report for work? The question of termination does not arise if you didn't report for work.

[hpandey]

Your change of status happened when your H1 was approved from the Start date in Oct 2008

That means you are no longer in H-4 status. If your employer has not paid you since Oct that is illegal. The employee has to be paid or terminated. What your employer is doing is not legal ( there is no bench period for H1 employees ).

You can try to get back on the H-4 status by applying for change of status and hope that it is approved.

Desi3933 raised a good point. If you never reported to work the question of termination does not arise and your employer can always say that you never reported for work . If that happens your whole stay from Oct 2008 onwards could be deemed Illegal stay.

[sledge_hammer]

I agree with hpandey. What your employer is doing is illegal. He can get into a lot of trouble for not paying you. You need to report this guy to the DOL.

Regarding your status, contact an immigration lawyer to see if you can change your status to H4 ASAP.

Good luck!

Originally Posted by gopudeep

hii

I entered US with a H4 visa which was till June 2007.and then applied for my H4 extension
and got it till May 2009.last year i applied for my H1 visa and got approved.I 94 i got with it is till May 2011.I didnt get any project and didnt have any paystubs.now i want to apply for my H4 extension along with my spouse H1 extension.
please explain...

[desi3933]

Originally Posted by hpandey

Your change of status happened when your H1 was approved from the Start date in Oct 2008

That means you are no longer in H-4 status. If your employer has not paid you since Oct that is illegal. The employee has to be paid or terminated. What your employer is doing is not legal ( there is no bench period for H1 employees ).

You can try to get back on the H-4 status by applying for change of status and hope that it is approved.

Desi3933 raised a good point. If you never reported to work the question of termination does not arise and your employer can always say that you never reported for work. If that happens your whole stay from Oct 2008 onwards could be deemed Illegal stay.

It is "unlawful presence", not "illegal presence". BIG DIFFERENCE.
3/10 year ban applies to illegal presence only.

[senthil1]

I heard that you need paystubs for changing H4 in USA also. I am not sure. If that is the case then you need to go back to India and get H4 stamped. Once you get a job you can again switch over to H1b. It is highly riskier to be on bench without pay though many people are in that situation.

Originally Posted by gopudeep

hii

I entered US with a H4 visa which was till June 2007.and then applied for my H4 extension
and got it till May 2009.last year i applied for my H1 visa and got approved.I 94 i got with it is till May 2011.I didnt get any project and didnt have any paystubs.now i want to apply for my H4 extension along with my spouse H1 extension.
please explain...

[gopudeep]

i didnt work so i can apply for my h4 extension .is it right

[desi3933]

Originally Posted by gopudeep

i didnt work so i can apply for my h4 extension .is it right

Person must be in valid visa status in order to apply for change of status. One may get RFE like this -

In order to qualify for a change of status, the applicant has to be in valid nonimmigrant status at the time of filing. Submit copies of the applicant's pay records (leave and earnings statements, and pay stubs, etc.) with his or her employer for the three months prior to the filing of the present petition to establish that the beneficiary was in a valid H1-B nonimmigrant status at the time the present application was filed.

______________________
Not a legal advice.
US citizen of Indian origin

[nayekal]

Originally Posted by senthil1

I heard that you need paystubs for changing H4 in USA also. I am not sure. If that is the case then you need to go back to India and get H4 stamped. Once you get a job you can again switch over to H1b. It is highly riskier to be on bench without pay though many people are in that situation.

Yes. You need pay stubs to change from H1 to H4.

Lot of us were mislead by the notion, that if some one doesn't work on H1, then they keep their previous status until they work.

My wife is on H1 earlier and didn't work in 2008, so I changed her status back to H4 using my H1 extension. But at that time I didn't submit her pay stubs, since she has none. Some people told me to submit a couple of fake pay stubs, but I decided to do it in a legal way. My attorney told me that he will file a case on her employer, in case if she gets a query.
But, he told me that,since it is H1 to H4 transfer, she might get approval easily unlike H1 to H1. Luckily, she got the approval within couple of months.

[desi3933]

Originally Posted by wandmaker

You apply for H1 through body shop,when there is no actual full time job and agree to get you on payroll only after you find the project. You were happy to see your H1 approval and searched for a project for few months & no luck. All of a sudden, the fear of 'what-will-happen-if-do-not-find-a-project;will-I-face-issues;how-to-get-back-legal-status' got into the head. Don't you think guys like you are abusing the system and also snatching away an opportunity of a genuine candidate? Abuse is what everyone, including IV, want to report and stop.

Reporting to work means, you have submitted duly filled and signed I-9 form to your employer. Since you have not reported work, termination of employment does not come into picture, but employer has the right to revoke your H1B petition, and they may do it. You are out-of-status clock is ticking. Your change of status approval (H1-H4) is unlikely because you need pay stubs to prove your status and you don't have one. Long story short, you are at the mercy of USCIS.

I second that.

Of late, we are seeing lot of H1-to-H4 without paychecks query.

[wandmaker]

Originally Posted by gopudeep

hii

I entered US with a H4 visa which was till June 2007.and then applied for my H4 extension
and got it till May 2009.last year i applied for my H1 visa and got approved.I 94 i got with it is till May 2011.I didnt get any project and didnt have any paystubs.now i want to apply for my H4 extension along with my spouse H1 extension.
please explain...

Originally Posted by gopudeep

effective start date is oct 2008
i didnt work. i donot have any payslips.
what will happen if my employer terminates now

You apply for H1 through body shop,when there is no actual full time job and agree to get you on payroll only after you find the project. You were happy to see your H1 approval and searched for a project for few months & no luck. All of a sudden, the fear of 'what-will-happen-if-do-not-find-a-project;will-I-face-issues;how-to-get-back-legal-status' got into the head. Don't you think guys like you are abusing the system and also snatching away an opportunity of a genuine candidate? Abuse is what everyone, including IV, want to report and stop.

Anyway, Reporting to work means, you have submitted duly filled and signed I-9 form to your employer. Since you have not reported work, termination of employment does not come into picture, but employer has the right to revoke your H1B petition, and they may do it. You are out-of-status clock is ticking. Your change of status approval (H1-H4) is unlikely because you need pay stubs to prove your status and you don't have one. Long story short, you are at the mercy of USCIS.

[wandmaker]

Originally Posted by sledge_hammer

I agree with hpandey. What your employer is doing is illegal. He can get into a lot of trouble for not paying you. You need to report this guy to the DOL.

Regarding your status, contact an immigration lawyer to see if you can change your status to H4 ASAP.

Good luck!

It is not always employer is 'abusing' the system, sometimes 'employees' too directly or indirectly. Honestly, gopudeep will not report this to DOL or USCIS. BTW, employer will not be in trouble because gopudeep did not report to work and the employer can get off the hook easily.

[gopudeep]

thanks for all ur responces.
i agree with what u all say.
i am planing to go to india and get my h4 stamping from there.
what do u say..