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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 02-19-2009, 10:25 AM
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Default On H-1B, No Job, came to US in Oct-08

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.
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  #2 (permalink)  
Old 02-19-2009, 10:38 AM
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Default i think

Firstly relax and don't get stressed so much. There are many who are w/o projects/clients suffering at the hands of these so called Job-Shops.

Now
1. Your employer can terminated your H1B.
2. Yes you have the rights to fight it out. go to the DOL website for your state and find a compliant form and make a formal complaint against employer.
3. Transfer of H1B looks bleak possibility as you don't have pay-stubs. I have heard people getting H1B transfered w/o paystubs but that was in 2005-06. USCIS is getting very stricker nowadays.
4. Out of status (its a gray area), some senior IVians might advice on this.

I empathize with you, this will also pass and things will be better. take care.

thank you.
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  #3 (permalink)  
Old 02-19-2009, 10:38 AM
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Default

1. They can cancel your H1 any time.
2. You can fight with them. But if they cancel you need to leave the country if they cancel your H1b unless you get a job. Even if you get a job H1b transfer may not be possible as CIS will ask paystubs
3. H1b transfer is not possible unless you have paystubs. But there is a possiblity that you can apply H1b without transfer. If that is approved you may have to get stamping again. Consult a good attourney

4. You will not able to transfer H1b. That itself is a big penalty. You are not supposed to be out of status. CIS may be sympathatic in this.When employer brings a person from India he has 2 months time to include you in payroll.

Basically it is your decision. Even if you resolve immigration issue you need very strong skills to get a job in this tough job market. Luck also could play a role in this.

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.
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  #4 (permalink)  
Old 02-19-2009, 10:53 AM
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Default

Hi Senthil1 and Sac-r-Ten

1. Do you mean "They can cancel your H1 any time" will USCIS will not ask about my salary and other related things.

2.. Is it possible that they will show me sick or unpaid leave in 2008 (2 months 10 days) and before feb-09 end ( 2 months in 2009) they want to wash their hands, without coming into criteria of putting on payroll in 2 months, as you said???

3. I do not intend to stay here to fight but before going i want to make a formal complaint. will it be enough??
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Old 02-19-2009, 11:03 AM
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Default

For Cancelling H1b USCIS will not ask any question.
You can complain to DOL and DOL may make them to pay your wages. In that case you will become in status and you can apply a H1b transfer.

Quote:
Originally Posted by ariesbkk18 View Post
Hi Senthil1 and Sac-r-Ten

1. Do you mean "They can cancel your H1 any time" will USCIS will not ask about my salary and other related things.

2.. Is it possible that they will show me sick or unpaid leave in 2008 (2 months 10 days) and before feb-09 end ( 2 months in 2009) they want to wash their hands, without coming into criteria of putting on payroll in 2 months, as you said???

3. I do not intend to stay here to fight but before going i want to make a formal complaint. will it be enough??
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  #6 (permalink)  
Old 02-19-2009, 11:03 AM
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Default File a complaint

They can cancel h1 any time.

File a complaint before you leave USA. Let them answer queries from DOL. They will be fined for sure. Submit as much evidence as possible.

Check this out, you might get some idea.

http://www.dleg.state.mi.us/email_pa...wage_claim.htm

http://www.mass.gov/?pageID=cagoterm...ints&csid=Cago
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  #7 (permalink)  
Old 02-19-2009, 11:09 AM
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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.
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.
__________________
Greened on September 10th, 2010
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  #8 (permalink)  
Old 02-19-2009, 11:15 AM
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Default Re:On H-1B, No Job, came to US in Oct-08

In your case (since you do not have pay stubs), transferring your H1B without resorting to consular processing is going to be difficult. Most lawyers will suggest you go the consular route under which you will need to leave the US and enter after appearing for an H1B visa interview at a US consulate in your home country with an H1B approval notice from your new employer. For consular processing, the H1B approval notice would not have I-94 attached to the bottom.

In case the lawyers agree to file an H1B transfer application without pay stubs, they will most likely ask for a copy of your complaint to DOL as a proof that you have taken the fact your employer has not been paying you seriously and have taken steps against that.

I would strongly recommend contacting an immigration lawyer. They will not only give you legal help but more importantly some peace of mind.

Hope this helps.
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  #9 (permalink)  
Old 02-19-2009, 11:43 AM
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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 penalties.

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

Thanks in advance.
>> My employer insisted me to come to US
Do you have email or letter to back your claim?

Did you report for work? Did you fill I-9 form with employer?
Did you get any written notice of termination from employer?
Did you submit any written notice to demand salary so far?
Where did you stay in US so far? Is the place provided by employer?
Did you sign any agreement with employer in US? Do you have a copy of that agreement?
Who paid for your air ticket?

You need to establish that you started working and were not paid wages.

______________________
Not a legal advice.
US citizen of Indian origin
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  #10 (permalink)  
Old 02-19-2009, 12:00 PM
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Default

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.
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  #11 (permalink)  
Old 02-19-2009, 12:03 PM
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Dude

Take it easy. Dont waste your time in finding ways to screw your employe, Spend the same time is learning new thing which will help you in finding a job. that is more important. dont be selfish.

you will have good times.

best of luck
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  #12 (permalink)  
Old 02-19-2009, 12:06 PM
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If you report to DOL, you will be the first to be kicked out.
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  #13 (permalink)  
Old 02-19-2009, 12:26 PM
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Quote:
Originally Posted by Nikith77 View Post
If you report to DOL, you will be the first to be kicked out.
This is not true, if you want to collect 20k which servs the purpose you came to USA, file a complaint to the state DOL where ur intended to work, employer has no choice other than to pay you, that way ur legally in status coz he has to pay, in the mean time apply for another H1B and switch to that company.
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Old 02-19-2009, 12:39 PM
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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.
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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Old 02-19-2009, 12:41 PM
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Quote:
Originally Posted by Nikith77 View Post
If you report to DOL, you will be the first to be kicked out.
Dont give advice/views, which are 100% wrong.
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