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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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  #1 (permalink)  
Old 06-06-2008, 10:06 AM
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Unhappy Urgent: Employer asking money for Salary Over-payment

Hi,
Please reply with your suggestions at the earliest as I need to respond to my employer by this weekend.

My Situation:
My project with Employer-A has ended on April-30 and told me to move to India on May-1. Discussed this with my HR Manager and got the extension till May-11. My daughter(Born in US) does not have US Passport & PIO card to immediately go to India and informed them that I need atleast 4 weeks to get all these. They seem to ignore all this but I have been getting paid all these days till May-30.

Meanwhile, I have got an offer from Employer-B on May 21. Last week on May-28, my HR Manager from Employer-A has asked me to pay the overpaid amount. Then I decided to resign and asked him to apply the 30-Day Notice Period as per the Employment Agreement. HR Manager says that the 30-Day Notice Period will not be considered now. Told me that May-18 will be treated as my last working day and asked me to send a cheque for around $2000 as overpayment from May 19- May-30.

Questions:
1.Is it legal for HR Manager- 'Not to consider' the 30-Day Notice Period as per Employment Agreement?
2.Is it legal for HR Manager to decide on my last working day with them? (I have resigned on May-28 and they are treating my last day as May-18). Does this not have to be mutually agreed date?
3. My joining date with Employer-B is on June-9. I would not be getting paid by either of the Employers from June 1-June-8. Will this be an issue with my H1-Status or during Green Card Processing.
4. Is it legal for Employer to ask for money from Employee. Am I obliged to pay my employer this amount.?

Appreciate your quick suggestions.

Last edited by Cherry2006; 06-06-2008 at 10:14 AM.
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  #2 (permalink)  
Old 06-06-2008, 10:28 AM
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Quote:
Originally Posted by Cherry2006 View Post
Hi,
Please reply with your suggestions at the earliest as I need to respond to my employer by this weekend.

My Situation:
My project with Employer-A has ended on April-30 and told me to move to India on May-1. Discussed this with my HR Manager and got the extension till May-11. My daughter(Born in US) does not have US Passport & PIO card to immediately go to India and informed them that I need atleast 4 weeks to get all these. They seem to ignore all this but I have been getting paid all these days till May-30.

Meanwhile, I have got an offer from Employer-B on May 21. Last week on May-28, my HR Manager from Employer-A has asked me to pay the overpaid amount. Then I decided to resign and asked him to apply the 30-Day Notice Period as per the Employment Agreement. HR Manager says that the 30-Day Notice Period will not be considered now. Told me that May-18 will be treated as my last working day and asked me to send a cheque for around $2000 as overpayment from May 19- May-30.

Questions:
1.Is it legal for HR Manager- 'Not to consider' the 30-Day Notice Period as per Employment Agreement?
2.Is it legal for HR Manager to decide on my last working day with them? (I have resigned on May-28 and they are treating my last day as May-18). Does this not have to be mutually agreed date?
3. My joining date with Employer-B is on June-9. I would not be getting paid by either of the Employers from June 1-June-8. Will this be an issue with my H1-Status or during Green Card Processing.
4. Is it legal for Employer to ask for money from Employee. Am I obliged to pay my employer this amount.?

Appreciate your quick suggestions.

If you are in H1 and its not revoked by your employer, they can not claim May 18 as your last working day. They have to pay you by law untill they officially teminate you or revoke your H1. If they terminate you, they have to bear the india air ticket cost for you. I dont believe you need to pay back.
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When you come across any immigration Frauds
# Contact the U.S. Immigration and Customs Enforcement (ice.gov) by telephone at (866) DHS-2-ICE. The hotline is designed specifically to accept immigration violation reports. You can complain anonymously.

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  #3 (permalink)  
Old 06-06-2008, 10:46 AM
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Quote:
Originally Posted by Cherry2006 View Post
Hi,
Please reply with your suggestions at the earliest as I need to respond to my employer by this weekend.

My Situation:
My project with Employer-A has ended on April-30 and told me to move to India on May-1. Discussed this with my HR Manager and got the extension till May-11. My daughter(Born in US) does not have US Passport & PIO card to immediately go to India and informed them that I need atleast 4 weeks to get all these. They seem to ignore all this but I have been getting paid all these days till May-30.

Meanwhile, I have got an offer from Employer-B on May 21. Last week on May-28, my HR Manager from Employer-A has asked me to pay the overpaid amount. Then I decided to resign and asked him to apply the 30-Day Notice Period as per the Employment Agreement. HR Manager says that the 30-Day Notice Period will not be considered now. Told me that May-18 will be treated as my last working day and asked me to send a cheque for around $2000 as overpayment from May 19- May-30.

Questions:
1.Is it legal for HR Manager- 'Not to consider' the 30-Day Notice Period as per Employment Agreement?
2.Is it legal for HR Manager to decide on my last working day with them? (I have resigned on May-28 and they are treating my last day as May-18). Does this not have to be mutually agreed date?
3. My joining date with Employer-B is on June-9. I would not be getting paid by either of the Employers from June 1-June-8. Will this be an issue with my H1-Status or during Green Card Processing.
4. Is it legal for Employer to ask for money from Employee. Am I obliged to pay my employer this amount.?

Appreciate your quick suggestions.
First of all, do not be afraid. Know the law and your rights. What is not clear from your posts is whether they have terminated your employment relationship with them a.k.a. mailed you the termination letter with an effective date. They have to pay you definitely up to that date and depending on the company policy 1/2/4 weeks of severance pay (if any) if it is in your contract or is the standard company HR policy. There is no such thing as a bench / no project period in the eyes of USCIS when you are on H-1. Moreover, if you have not secured another job where the employer is willing / has filed for your H-1 (the so called H-1 transfer), and if you choose to go back to your home country and notify the terminating employer, they have to provide you with your return airfare / arrangement. If they have / had served you with a termination letter in the first place, they would have never paid you past that date, so I think they are just playing cheap here to trick you into paying back the money since they cannot seem to place you on a new project and know that you will leave them now for sure. Do not be afraid, know your rights and the law. One mention of USCIS / DOL complaint in this regard will scare such employers away.
And as always, as soon as you are back on your feet, get actively involved in your IV State Chapter and donate generously to your own cause.
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  #4 (permalink)  
Old 06-06-2008, 12:05 PM
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Cherry2006 is on a distinguished road
Default Employer asking Money for Salary Over-Payment

Thanks for the replies and suggestions.

My Employer has not terminated my employment.
I have sent the resignation on May 28 and they have accepted this on June 2nd and treating my last day as May-18.

When I have joined this Employer, we had an Employment Agreement that states "Your employment status with 'XXX-Company' is that of employment at will. You may terminate your employment at any time by providing thirty(30) days written notice".

So in this situation, is it the employer who will solely decide on my last day.
Am I obliged to pay the money they say as 'Over-Payment'.

My H1-B transfer with Employer-B has been filed on May-27 with Normal Processing. Is it advisable to pay the $2000 to employer-A and avoid any
H1-B Transfer approval issues or can I avoid paying them the amount.

Please advise the safe approach.
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  #5 (permalink)  
Old 06-06-2008, 12:21 PM
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Before you put this question to a public forum for help, have you tried talking to them. Determine the reason why they are insisting upon the May-18th date, and then if you find that to be unfair, ask for suggestions here.

Communication in honest terms and describing why you are right to them will help you in the long run as well. Rather than avoid payment, try to move on with good terms.
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  #6 (permalink)  
Old 06-06-2008, 01:20 PM
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They can ask you to work until June 27th, but they cannot ask you to repay salary back. Do not budge, ask them for a written notice. The notice should include the amount of the overpayment, the basis for the claim, and the rights of the employee. If they refuse to provide the notice, you are free.
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Last edited by lazycis; 06-06-2008 at 01:26 PM.
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  #7 (permalink)  
Old 06-06-2008, 02:45 PM
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Quote:
Originally Posted by Cherry2006 View Post
Thanks for the replies and suggestions.

My Employer has not terminated my employment.
I have sent the resignation on May 28 and they have accepted this on June 2nd and treating my last day as May-18.

When I have joined this Employer, we had an Employment Agreement that states "Your employment status with 'XXX-Company' is that of employment at will. You may terminate your employment at any time by providing thirty(30) days written notice".

So in this situation, is it the employer who will solely decide on my last day.
Am I obliged to pay the money they say as 'Over-Payment'.

My H1-B transfer with Employer-B has been filed on May-27 with Normal Processing. Is it advisable to pay the $2000 to employer-A and avoid any
H1-B Transfer approval issues or can I avoid paying them the amount.

Please advise the safe approach.
If you really worry about your H1B transfer, Just go compromise with the employer A and avoid fight for $2000. Just send a formal letter to Employer A stating that you need 3 or 4 months time to pay the over-paid amount. Meantime try to get the H1B transfer done..
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  #8 (permalink)  
Old 06-06-2008, 03:06 PM
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Quote:
Originally Posted by rbalaji5 View Post
If you really worry about your H1B transfer, Just go compromise with the employer A and avoid fight for $2000. Just send a formal letter to Employer A stating that you need 3 or 4 months time to pay the over-paid amount. Meantime try to get the H1B transfer done..
I guess he already got the new job and filed H1 transfer...there is no need to plead with the employer A....they can not do anything legally. If you think that $2000 very small amount, please send that money to me or IV.
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When you come across any immigration Frauds
# Contact the U.S. Immigration and Customs Enforcement (ice.gov) by telephone at (866) DHS-2-ICE. The hotline is designed specifically to accept immigration violation reports. You can complain anonymously.

Fraud Detection and National Security (FDNS) Directorate
111 Massachusetts Ave., NW Suite 7002,
Mail Stop 2280 Washington,
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  #9 (permalink)  
Old 06-06-2008, 03:26 PM
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Quote:
Originally Posted by snathan View Post
I guess he already got the new job and filed H1 transfer...there is no need to plead with the employer A....they can not do anything legally. If you think that $2000 very small amount, please send that money to me or IV.
Yah sure, give him your bank a/c #, routing number, full name, phone #.
No PMs please.
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  #10 (permalink)  
Old 06-06-2008, 04:11 PM
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Quote:
Originally Posted by loveiv View Post
Yah sure, give him your bank a/c #, routing number, full name, phone #.
No PMs please.
Please pay thru paypal.com. you can use immigrationvoice.org account for that.
__________________
When you come across any immigration Frauds
# Contact the U.S. Immigration and Customs Enforcement (ice.gov) by telephone at (866) DHS-2-ICE. The hotline is designed specifically to accept immigration violation reports. You can complain anonymously.

Fraud Detection and National Security (FDNS) Directorate
111 Massachusetts Ave., NW Suite 7002,
Mail Stop 2280 Washington,
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  #11 (permalink)  
Old 06-06-2008, 07:20 PM
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If they have overpaid you for any period they can ask you to repay. However they cannot change the dates from xx to yy without your knowledge.

IF they terminate you they have to pay for your travel back to india.
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  #12 (permalink)  
Old 06-07-2008, 12:59 AM
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Quote:
Originally Posted by Cherry2006 View Post
Hi,
Please reply with your suggestions at the earliest as I need to respond to my employer by this weekend.

My Situation:
My project with Employer-A has ended on April-30 and told me to move to India on May-1. Discussed this with my HR Manager and got the extension till May-11. My daughter(Born in US) does not have US Passport & PIO card to immediately go to India and informed them that I need atleast 4 weeks to get all these. They seem to ignore all this but I have been getting paid all these days till May-30.

Meanwhile, I have got an offer from Employer-B on May 21. Last week on May-28, my HR Manager from Employer-A has asked me to pay the overpaid amount. Then I decided to resign and asked him to apply the 30-Day Notice Period as per the Employment Agreement. HR Manager says that the 30-Day Notice Period will not be considered now. Told me that May-18 will be treated as my last working day and asked me to send a cheque for around $2000 as overpayment from May 19- May-30.

Questions:
1.Is it legal for HR Manager- 'Not to consider' the 30-Day Notice Period as per Employment Agreement?
2.Is it legal for HR Manager to decide on my last working day with them? (I have resigned on May-28 and they are treating my last day as May-18). Does this not have to be mutually agreed date?
3. My joining date with Employer-B is on June-9. I would not be getting paid by either of the Employers from June 1-June-8. Will this be an issue with my H1-Status or during Green Card Processing.
4. Is it legal for Employer to ask for money from Employee. Am I obliged to pay my employer this amount.?

Appreciate your quick suggestions.
I don't know why but i get a feeling that A = Wipro

1) Where was the agreement signed, if it was signed in US for the US deputation then they have to consider the 30 day notice. However some states are different, Eg: NJ has employment at will law.

2) I have never heard for backdated termination, i don't think that can work. The worst they can do is fire you as of the date.

3) It's a really short break...i will not worry too much.

4) If they can prove that they over paid then they can deduct this amount directly from your backaccount (if you had direct deposit enabled). If this i sthe case then i'll advise you to move your funds to a different account and request the bank not to issue over draft to any one. Closing that account is also an option. I don't know how they can demand the money back in a court.

If it's a fairly lagre company (like Wipro) then they will probably not be able to do much, they may not issue work exp letters for green card and refuse to hire you in future (Like you care!) but i will be really surprised if they will take you to court.
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  #13 (permalink)  
Old 06-07-2008, 12:24 PM
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Quote:
Originally Posted by garybanz View Post
I don't know why but i get a feeling that A = Wipro

1) Where was the agreement signed, if it was signed in US for the US deputation then they have to consider the 30 day notice. However some states are different, Eg: NJ has employment at will law.

2) I have never heard for backdated termination, i don't think that can work. The worst they can do is fire you as of the date.

3) It's a really short break...i will not worry too much.

4) If they can prove that they over paid then they can deduct this amount directly from your backaccount (if you had direct deposit enabled). If this i sthe case then i'll advise you to move your funds to a different account and request the bank not to issue over draft to any one. Closing that account is also an option. I don't know how they can demand the money back in a court.

If it's a fairly lagre company (like Wipro) then they will probably not be able to do much, they may not issue work exp letters for green card and refuse to hire you in future (Like you care!) but i will be really surprised if they will take you to court.
I dont believe they can deduct from the bank account directly even if they over paid you. Any one can deposit but can not deduct or withdraw money legally or until there is a court order . I never come across a situation like this. Please post the link if you have any source
__________________
When you come across any immigration Frauds
# Contact the U.S. Immigration and Customs Enforcement (ice.gov) by telephone at (866) DHS-2-ICE. The hotline is designed specifically to accept immigration violation reports. You can complain anonymously.

Fraud Detection and National Security (FDNS) Directorate
111 Massachusetts Ave., NW Suite 7002,
Mail Stop 2280 Washington,
D.C. 20529-2280
FDNS@dhs.gov
filing without current PD
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  #14 (permalink)  
Old 06-07-2008, 01:27 PM
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Quote:
Originally Posted by snathan View Post
I dont believe they can deduct from the bank account directly even if they over paid you. Any one can deposit but can not deduct or withdraw money legally or until there is a court order . I never come across a situation like this. Please post the link if you have any source
I agree. Even payroll deductions are very limited and cannot be authorized without your signature. I know court decisions where courts said that advance payment/overpayment cannot be taken back via payroll deductions.
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  #15 (permalink)  
Old 06-07-2008, 02:06 PM
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If you already issued the check, call the bank and do Stop issue check. It will cost you $25. Once you are done, update it here.
__________________
When you come across any immigration Frauds
# Contact the U.S. Immigration and Customs Enforcement (ice.gov) by telephone at (866) DHS-2-ICE. The hotline is designed specifically to accept immigration violation reports. You can complain anonymously.

Fraud Detection and National Security (FDNS) Directorate
111 Massachusetts Ave., NW Suite 7002,
Mail Stop 2280 Washington,
D.C. 20529-2280
FDNS@dhs.gov
filing without current PD
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