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Out of status, employment gap and status revalidation Gap in employment(paystubs) and the resulting problems during status transfer and green card filing.

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  #31 (permalink)  
Old 02-19-2009, 05:49 PM
ups ups is offline
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ups has a spectacular aura about ups has a spectacular aura about
Default

Quote:
Originally Posted by Nikith77 View Post
Dude

Donít be selfish. Think about all the people who are working for that employer, you will be screwing all of them
This guy looks desi consultant
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  #32 (permalink)  
Old 02-23-2009, 08:56 AM
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Default Perfect Route !

Quote:
Originally Posted by wandmaker View Post
ariesbkk18, this is the perfect route to take
As advised by the IV member here, this is the right way to go about doing this. Employer is obligated to pay you from Day 1 you enter the country on an visa that was issued based on an LCA applied for by them. In fact if you paid for H1 and travel you might also be able to get that expenses back from him since you are not supposed to pay for that either.
Make up your mind first.
1. Do you want to continue living in this country and are confident enough of finding an employer/project right away so you that you can move on?
2. Would like to go back to your home country.

For both the options you should choose the route advised by the IV members here(except the one which tell's you to take it easy on the employer). Additionally you can always demand the employer give you the return ticket back as well as that is what they commit in the LCA application.

So do the right thing, I wish you get out of this mess soon.

- good luck
kris
__________________
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---------------------------------
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  #33 (permalink)  
Old 02-23-2009, 09:35 AM
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Default Is it a valid point?

Can employer argue that employee is not billable so did not pay the salary. I do not think so. If that is the case no Desi employer is guilty. They can prove anybody on bench is non billable.

Quote:
Originally Posted by chanduv23 View Post
technically there is no concept called bench. Employer who sponsored H1b has to pay you salary. After you arrive, the employer must process your payroll within a month.
You may not have a good bargaining power if you go to DOL because your employer can claim that you have never been productive or billable. Your only option is to look for a project - try to get a project and get billable - get your payroll going.
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  #34 (permalink)  
Old 02-23-2009, 09:44 AM
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Default He is not out of status

This guy is not out of status until employer terminates the H1B. At this point the issue is simply employer not paying the salary.

Quote:
Originally Posted by sidbee View Post
First thing your Employer has broken the law, and he should be reported to USCIS/DOL.

Answers according to me, (I am not a lawyer and this does not constitute a legal advice)
1.Yes they can , but legally they are responsible for ur return tickets (Your company doesn't seem to be doing stuff legally)
2.Yes you have rights , go to DOL/USCIS.
3.You were out of status , and thereby you cant do that.4.When you move to USA, you should be getting full pay , after completeing 1st month.If not u r out of status.

You can sue them , if you have the guts to fight on,

I really wish USCIS/DOL reads this post , Contact you and get the Details of the employer and arrest him , under immigration fraud.
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  #35 (permalink)  
Old 02-23-2009, 10:14 AM
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Nikith77 is infamous around these parts Nikith77 is infamous around these parts Nikith77 is infamous around these parts Nikith77 is infamous around these parts Nikith77 is infamous around these parts Nikith77 is infamous around these parts
Default

this is to the prople who has given me red, Please be realistic. everyone will have good and bad times.
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  #36 (permalink)  
Old 02-23-2009, 10:20 AM
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desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute desi3933 has a reputation beyond repute
Default

Quote:
Originally Posted by ariesbkk18 View Post
Hi There,

Do you have email or letter to back your claim? Yes

Did you report for work? Did you fill I-9 form with employer?
Yes i report to them they help me in open a bank account but no paper formalities in US.

Did you get any written notice of termination from employer?
No

Did you submit any written notice to demand salary so far?
No, they made it mutual, but i have petition copy and employment letter copy.

Where did you stay in US so far? Is the place provided by employer?
Place is provided by employer.

Did you sign any agreement with employer in US?
No i did not sign any document in US.

Do you have a copy of that agreement?
No

Who paid for your air ticket?
I paid for my ticket.

You need to establish that you started working and were not paid wages.
I do not have any idea how to establish this.

Please can you confirm if I report to DOL in that case would i be able to transfer my H1.
Employer is required by law to
Either put employee in the payroll within 30 days after the date the nonimmigrant employee entered US on H1 visa status
OR
Notify USCIS and employee termination of employment so that the petition is canceled (8 CFR Section 214.2 h.11). In addition, in most cases, Employer should also provide the employee with payment for trip to last known foreign address. (8 CFR Section 214.2 h.4.iii E).

These are your rights. It is upto you how you want to pursue them.

There was a similar case a while back in 2003. In that case, employee testified by telephone from India. Employee (J.C. Prasad) was in US from Feb 2001 to July 2001 and he was not paid since he was on bench. In this case, Prasad stayed at a place provided by employer and was paid total of $350 during this stay. Employer was handed two H1-B violations -- failure to pay LCA Salary to the employee and failure to provide notice about LCA filing to its employees. US DOL passed orders in March 2003 to pay back wages to Employee.

____________________
Not a legal advice
US citizen of Indian origin

Last edited by desi3933; 02-23-2009 at 10:35 AM.
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  #37 (permalink)  
Old 02-26-2009, 09:59 AM
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ariesbkk18 is infamous around these parts ariesbkk18 is infamous around these parts
Default They want me to go back ASAP

Hi All,
Thanks for all your suggestions and giving me moral support, which is more than anything for a man without money/job and family.
I am still talking to my employer for this issue but nothing seems to be working.

I am having an employment letter which they issue for immegration purpose and once i landed in US i did not complete any Paper work except they refer me to open my bank a/c and putting 2,000 US$ (Two Thousand USD) for my expense and now they said they will not give me anything.

In btw they try to convey a message that "Do not think of reporting them, they have all the protection and big Lawyers."

I am not able to understand if they can "Protect" themselves as i did not complete any paperwork with them in US except Open a Bank a/c in my name on company address, staying in their Guest house.

Please continue reply as this gives a lot of strenght.
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  #38 (permalink)  
Old 02-26-2009, 12:06 PM
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like_watching_paint_dry is infamous around these parts like_watching_paint_dry is infamous around these parts like_watching_paint_dry is infamous around these parts like_watching_paint_dry is infamous around these parts like_watching_paint_dry is infamous around these parts like_watching_paint_dry is infamous around these parts like_watching_paint_dry is infamous around these parts like_watching_paint_dry is infamous around these parts like_watching_paint_dry is infamous around these parts
Default Report them to DOL

It is in your own best interest to report these guys to DOL, and put your home country contact information if you are unable to transfer to a legit employer and you have to leave the country. H & L visas are coming under intense scrutiny lately. If you were to request a visa in the future and were asked to explain your stay during this period, you will have a reasonable answer if you take steps to report these kind of consultancies to the DOL at this time.

Tell your employer you are glad they have the protection of big lawyers and all, cuz they are gonna need every bit of it of that legal expertise for dealing with DOL investigation.
Don't forget to ask them to buy you a return ticket home if you are leaving, it is your right and employer terminating the H is obligated by law to provide you the return fare.


Quote:
Originally Posted by ariesbkk18 View Post
Hi All,
Thanks for all your suggestions and giving me moral support, which is more than anything for a man without money/job and family.
I am still talking to my employer for this issue but nothing seems to be working.

I am having an employment letter which they issue for immegration purpose and once i landed in US i did not complete any Paper work except they refer me to open my bank a/c and putting 2,000 US$ (Two Thousand USD) for my expense and now they said they will not give me anything.

In btw they try to convey a message that "Do not think of reporting them, they have all the protection and big Lawyers."

I am not able to understand if they can "Protect" themselves as i did not complete any paperwork with them in US except Open a Bank a/c in my name on company address, staying in their Guest house.

Please continue reply as this gives a lot of strenght.
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  #39 (permalink)  
Old 02-26-2009, 01:34 PM
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Default Don't worry and report them

Quote:
Originally Posted by ariesbkk18 View Post
Hi All,
Thanks for all your suggestions and giving me moral support, which is more than anything for a man without money/job and family.
I am still talking to my employer for this issue but nothing seems to be working.

I am having an employment letter which they issue for immegration purpose and once i landed in US i did not complete any Paper work except they refer me to open my bank a/c and putting 2,000 US$ (Two Thousand USD) for my expense and now they said they will not give me anything.

In btw they try to convey a message that "Do not think of reporting them, they have all the protection and big Lawyers."

I am not able to understand if they can "Protect" themselves as i did not complete any paperwork with them in US except Open a Bank a/c in my name on company address, staying in their Guest house.

Please continue reply as this gives a lot of strenght.
Don't worry about their threat of big lawyers - it will cost them more to pay the "BIG Lawyer " to fight their case against the DOL than if they had paid you.

And once DOL slaps the fines and penalties on them I think they would be out of business soon. You have every right to demand what they owe you as per the rules and the LCA.
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  #40 (permalink)  
Old 02-26-2009, 06:26 PM
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ariesbkk18 is infamous around these parts ariesbkk18 is infamous around these parts
Default What Could be the peanalties for them?

Now I understand what i can do, but within these 5 months i have lost my saving, my job, living forced bachelor life, in my home my parents, family are under pressure, and these guys continue putting their shoes on my tail, and same time i am looking for job and "learning" new technologies under extreme pressure.

What are the Penalities impose by DOL and USCIS in such cases??
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  #41 (permalink)  
Old 02-26-2009, 06:36 PM
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Default Dont be scared

Quote:
Originally Posted by ariesbkk18 View Post
Hi All,
Thanks for all your suggestions and giving me moral support, which is more than anything for a man without money/job and family.
I am still talking to my employer for this issue but nothing seems to be working.

I am having an employment letter which they issue for immegration purpose and once i landed in US i did not complete any Paper work except they refer me to open my bank a/c and putting 2,000 US$ (Two Thousand USD) for my expense and now they said they will not give me anything.

In btw they try to convey a message that "Do not think of reporting them, they have all the protection and big Lawyers."

I am not able to understand if they can "Protect" themselves as i did not complete any paperwork with them in US except Open a Bank a/c in my name on company address, staying in their Guest house.

Please continue reply as this gives a lot of strenght.
It's true this country is being run by lawyers and accountants, but their is no reason to be affraid of their threats. These are bogus threats and they are praying you will quitly slip away or find another job. If you stay in this country for long, you start understanding what is possible and what isn't. If they go to court, their would so many wrong-doings that they may shut-down. Trust me their is lot of skunk every business carries with them, knowlingly or un-knowingly, plus it costs them to challange you.

If you are not scarred, step back and think wisely. You may end up making some money out of this whole turmoil ... it's called settlement cost. Atleast have a first-class air ticket for way back.

Good luck and don't be shy to share how theings are moving.
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  #42 (permalink)  
Old 02-26-2009, 06:37 PM
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Default

Quote:
Originally Posted by ariesbkk18 View Post
Now I understand what i can do, but within these 5 months i have lost my saving, my job, living forced bachelor life, in my home my parents, family are under pressure, and these guys continue putting their shoes on my tail, and same time i am looking for job and "learning" new technologies under extreme pressure.

i understand your plight, mate.. this is a real test for you. don't give up. things will be better for sure and you will learn a big lesson in life. have faith my friend.

What are the Penalities impose by DOL and USCIS in such cases?? if you are lucky you will get your bench salary and also would be able to do a proper H1B transfer. .
hang in there mate

Last edited by sac-r-ten; 02-26-2009 at 06:41 PM. Reason: reasons1
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  #43 (permalink)  
Old 02-26-2009, 07:28 PM
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americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future americandesi has a brilliant future
Default

Quote:
Originally Posted by ariesbkk18 View Post
Hi There,
My employer insisted me to come to US, but after coming in US they could not find a project for me. I have completed my 4 months (2 months in 2008 and 2 months in 2009) here in US, and they have not paid me any salary. Now they are asking me to go back. I have few questions as it is do or die condition for me.

1. Can they file cancellation of my H-1B visa, as they have not given me any salary??
2. Do i have same rights to fights against my employer AFTER they cancel my H1-B as they did not pay me my salary for four months??
3. Is there anyway to transfer my H-1B??
4. What is the max time to stay with an Out Of Status Visa, 60 Days or Six Months ? , and what is penalities.

Please help me as i am passing through a severe mental stress.

Thanks in advance.
Going by your situation, you've got nothing to lose but a lot to gain by complaining to DOL against your employer. Here's what you're entitled to recover from your employer on complaining to DOL

1) H1 processing fees (if you had paid for it from your own pocket)
2) Salary from Oct 2008 to H1 cancellation date
3) One way Return air ticket to your home country
4) Any other misc. Settlement fees


Here's what your employer is entitled to loose on your complaint to DOL

1) Fines and other penalties from DOL
2) Ban on sponsoring any further H1's or GC's for the next 3 years
3) Possibility of getting arrested for immigration fraud
4) Getting tagged as a wilful violator in all future immigration petitions
5) Possibility of going out of business

Remember, USCIS checks the past immigration history for all applicants seeking an immigration benefit and not getting paid on bench has serious consequences during the adjudication of Green card. The following thread deals with one such case

http://immigrationvoice.org/forum/showthread.php?t=6205 (I 485 Denial Please Help)
__________________
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Last edited by americandesi; 02-26-2009 at 07:43 PM.
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  #44 (permalink)  
Old 03-03-2009, 12:41 PM
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Default Have no fear

Quote:
Originally Posted by americandesi View Post
Going by your situation, you've got nothing to lose but a lot to gain by complaining to DOL against your employer. Here's what you're entitled to recover from your employer on complaining to DOL

1) H1 processing fees (if you had paid for it from your own pocket)
2) Salary from Oct 2008 to H1 cancellation date
3) One way Return air ticket to your home country
4) Any other misc. Settlement fees


Here's what your employer is entitled to loose on your complaint to DOL

1) Fines and other penalties from DOL
2) Ban on sponsoring any further H1's or GC's for the next 3 years
3) Possibility of getting arrested for immigration fraud
4) Getting tagged as a wilful violator in all future immigration petitions
5) Possibility of going out of business

Remember, USCIS checks the past immigration history for all applicants seeking an immigration benefit and not getting paid on bench has serious consequences during the adjudication of Green card. The following thread deals with one such case

http://immigrationvoice.org/forum/showthread.php?t=6205 (I 485 Denial Please Help)
The Law is on your side.
Employer is supposed to pay you as reported in the LCA
Employer is also obligated to send you home with a return ticket if they cannot continue your employment

As americandesi and all of us have informed the employer can be in dock for doing this. You will be better of going back to your home country and start afresh. In this time of economic uncertainty it helps to be with family.

Have no fear and report these guys. But please make sure you maintain some kind of documentation to provide a trail. <edit> I see you were never on project so disregard this
- Do you have copies of timesheets etc that you sent to the employer when you worked on the projects? </edit>

- If you have any email's from employer asking you to report to work
- Any other emails that are constitute to instructions related to your stay here
- bank deposit a/c information, transactions

Even if you do not have any of these documents you are still within your rights to demand pay from the time you landed/got your SSN, ticket back home

Give them 1 Business day to comply. Provide all of it to DOL and see the magic. Worst case you might not get anything but atleast you put a fraudulent company out of business and saved the rest who could be victims in future.

- cheers & good luck
kris
__________________
Disclaimer: Not a legal advise
---------------------------------
1996 for 1st MS
PD EB2 Jan 2001, 9/11 ,(BEC ,pink slip)
H1 new empl - Dec 02
EB3 RIR, INDIA(Empl mess up)
PD: Sep 2003 , 2nd MS - SE
140 Approval: March 2004
3EADs , 4FPs
3APs, 485 approval -- 07/30/2007
GC in Hand - 08/07/2007

First in flower campaign
Calls to Congressmen,Senators
Letter for administrative fixes
Periodic donations to IV
Still with IV.

Last edited by krishnam70; 03-03-2009 at 12:44 PM.
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  #45 (permalink)  
Old 03-03-2009, 03:08 PM
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Default Sane advice by most IVians

Great advice guys.
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