Employer wants to cancel my wife's H1-B

[rxsimha]

Hi all,

My wife came to the US by H4 (Since I am on H1-B) 3 years ago.
She got her H1-B aproved in 2007, but was unable to work for a year since she got pregnant and had to take care of the kid.
She got her EAD along with me during November 2007.
She started working in August 2008(Using her H1-B). She finished one project which lasted for 4 months. She is looking for a new job now from 1 month and has no luck yet
She has been out of project for a little over a month now.
Now her employer wants to cancel her H1-B, as it is afraid that there can be an audit and it might be a risk for them as well as her, as she is without a job now.
They tell her to start using her EAD.
I am confused....
Can you please guide me what path I should take.

Appreciate your valuble inputs.

Thanks
rxsimha

[snathan]

Originally Posted by rxsimha

Hi all,

My wife came to the US by H4 (Since I am on H1-B) 3 years ago.
She got her H1-B aproved in 2007, but was unable to work for a year since she got pregnant and had to take care of the kid.
She got her EAD along with me during November 2007.
She started working in August 2008(Using her H1-B). She finished one project which lasted for 4 months. She is looking for a new job now from 1 month and has no luck yet
She has been out of project for a little over a month now.
Now her employer wants to cancel her H1-B, as it is afraid that there can be an audit and it might be a risk for them as well as her, as she is without a job now.
They tell her to start using her EAD.
I am confused....
Can you please guide me what path I should take.

Appreciate your valuble inputs.

Thanks
rxsimha

If you are in a stable job and got EAD...whats the problem using the EAD. Her employer might be right. If your wife is not getting paid in H1B, theemployer would get into trouble if there is any audit.

[rxsimha]

Originally Posted by snathan

If you are in a stable job and got EAD...whats the problem using the EAD. Her employer might be right. If your wife is not getting paid in H1B, theemployer would get into trouble if there is any audit.

Thanks for the reply.
But I am currently using H1-B. That is, I have not started using my EAD yet.
Should is be a problem?
And in this economy I don't feel my job is very stable.

[scorpion]

Two options
(1) Change your wife's status to H4
(2) Let her use EAD

I don't think you can stop Employer.

[rxsimha]

Originally Posted by scorpion

Two options
(1) Change your wife's status to H4
(2) Let her use EAD

I don't think you can stop Employer.

Is changing the status to H4 mandatory?
Can she not just start using EAD?

Can she not remain without job and still maintain H1-B Status?
As per below link
http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD

Thanks for your reply.

[nousername]

I don't see a problem with it.. In fact that is a better way to do it i.e. move to EAD.

Currently your wife is on H1B and the day she starts working on EAD her status will automatically change to AOC.. This won't affect your H1B in anyway. In fact my wife did the other way around i.e. stated with EAD and then the company applied for her H1B..

I hope this helps.

Originally Posted by rxsimha

Hi all,

My wife came to the US by H4 (Since I am on H1-B) 3 years ago.
She got her H1-B aproved in 2007, but was unable to work for a year since she got pregnant and had to take care of the kid.
She got her EAD along with me during November 2007.
She started working in August 2008(Using her H1-B). She finished one project which lasted for 4 months. She is looking for a new job now from 1 month and has no luck yet
She has been out of project for a little over a month now.
Now her employer wants to cancel her H1-B, as it is afraid that there can be an audit and it might be a risk for them as well as her, as she is without a job now.
They tell her to start using her EAD.
I am confused....
Can you please guide me what path I should take.

Appreciate your valuble inputs.

Thanks
rxsimha

[scorpion]

Originally Posted by rxsimha

Is changing the status to H4 mandatory?
Can she not just start using EAD?

Can she not remain without job and still maintain H1-B Status?
As per below link
http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD

Thanks for your reply.

I don't think she can do that legally. I think being on H1b status without work is more of an issue for an Employer.....Employer is bound to pay minimum prevailing wage to H1b worker according to her H1b petition, that may be the reason why they want to cancel her H1. If they do that than she has to transfer to some other status(H4 or EAD).......One more thing, Use of EAD invalidate H status.

[jsb]

Originally Posted by scorpion

I don't think she can do that legally. I think being on H1b status without work is more of an issue for an Employer.....Employer is bound to pay minimum prevailing wage to H1b worker according to her H1b petition, that may be the reason why they want to cancel her H1. If they do that than she has to transfer to some other status(H4 or EAD).......One more thing, Use of EAD invalidate H status.

What is the issue here with using EAD? An EAD tells that your AOS is in processing, and in the meantime you get privileges of a a GC holder, which means you work (or don't work) with any employer using EAD.

[desi3933]

Originally Posted by rxsimha

Is changing the status to H4 mandatory?
Can she not just start using EAD?

Can she not remain without job and still maintain H1-B Status?
As per below link
http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD

Thanks for your reply.

What is your explanation for this "unpaid leave" (aka bench)?

Please note that an employer is in violation of the LCA requirement at Sec. 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. The prohibition against unpaid nonproductive status does not apply to nonproductive time due to non-work related to factors such as a voluntary request by the nonimmigrant for an absence (e.g., unpaid home leave on holiday), or circumstances rendering the nonimmigrant unable to work (Example - Medical incapacity, caring for sick relative, vacations).

_________________
Not a legal advice.

[pbojja]

Originally Posted by rxsimha

Is changing the status to H4 mandatory?
Can she not just start using EAD?

Can she not remain without job and still maintain H1-B Status?
As per below link
http://www.uscis.gov/portal/site/usc...0045f3d6a1RCRD

Thanks for your reply.

Check this link and do not apply H1Bs just so you think they can find a job ..its not legal to stay on H1B and not getting paid

http://www.uscis.gov/files/article/1...aud02feb09.pdf

[rxsimha]

Thanks everybody for all the information.
Can you please clarify these doubt for me -

1. If my wife begins to work with her EAD, does she have to change her H1 to H4 ?
2. If she finds a contract job, what are her options to work - W2/1099 ?
3. Can we open a company on her name and can she work through?

[reddog]

Originally Posted by rxsimha

Thanks everybody for all the information.
Can you please clarify these doubt for me -

1. If my wife begins to work with her EAD, does she have to change her H1 to H4 ?
2. If she finds a contract job, what are her options to work - W2/1099 ?
3. Can we open a company on her name and can she work through?

Why am I suddenly finding lots and lots of junior members asking extremely naive questions and asking for help or solutions or suggestions to bring them out of their illegal troubles?
rx, you are here in the US for atleast 3 years, and you are telling us, you dont know a single friend who is able to tell you that staying on bench is illegal?
that you had to ask this question on IV, dont you have a lawyer you can call?
did you call your employer, what did he say?

1. If my wife begins to work with her EAD, does she have to change her H1 to H4 ?
A: If she finds work, how can she change her status to H4, and why? H4 is a dependent visa.
2. If she finds a contract job, what are her options to work - W2/1099 ?
A: 1099 can jeopardize her AOS status, google it, please.
3. Can we open a company on her name and can she work through?
A: Open a company and hire every illegal mexican, they too need a legal status to stay in the country. Or are you suggesting that you open a company and hire her and let her cook food for you and tend your children on an H1b filed thru her husband, Yes, you are absolutely doing the right thing. Go ahead, do it, and by the way, you wil have to spend atleast 10 years in a maximum security prison for that.

[immigc06]

If the H1 is cancelled she has to move to either H4(cant work) or EAD(AOS). Since she has EAD its better to use it while the status is pending as AOS. I dont see any issues except that H1B wont be valid anymore which is OK as she has EAD. I know atleast two of my friends wife's who started using EAD due to contract issues or clients not accepting middle layers etc. although they had H1B.

[ashkam]

Short answer : The moment her employer cancels her H1B, she will automatically transition into AOS status. By the way, there is no such thing as "being on EAD status", as opposed to H4 status. EAD only allows a person in AOS status to work. You don't actually need an EAD to be in status.

[reddymjm]

Originally Posted by scorpion

Two options
(1) Change your wife's status to H4
(2) Let her use EAD

I don't think you can stop Employer.

Option 1 is dumb. Just use EAD.