I had an H1-b approved for change of status from OPT in Jan 2004 through a consultant (A). Within 15 days, I got a full time job with another company B.
Consultant A refused to give me my I-94 and H1-B papers to apply for a transfer. My transfer was filed by Company B within 1 month of approval of my H1-B with just the SRC/EAC number and no paychecks for the 3 weeks of employment on the H1-b.
UPDATE: 06/02/2004
The case has been approved by USCIS.
Question:
1. What is the possibility that my H1-B transfer will get approved? I do not have any paystubs for the 1 month from H1-B?
2. What is the usual DOL law regarding payment of wages for H1-b's? From my research, this is what I found. I am having trouble interpreting this. Is is ok for a person to be there in the US without pay for 60 days after H1-B employment starts or is he required to get paid from the day the H1-B application gets approved if he/she is already in the US?
TIA!! Please help.
For purposes of this paragraph (c)(6), the H-1B nonimmigrant is
considered to ``enter into employment'' when he/she first makes him/
herself available for work or otherwise comes under the control of the
employer, such as by waiting for an assignment, reporting for
orientation or training, going to an interview or meeting with a
customer, or studying for a licensing examination, and includes all
activities thereafter.
(ii) Even if the H-1B nonimmigrant has not yet ``entered into
employment'' with the employer (as described in paragraph (c)(6)(i) of
this section), the employer that has had an LCA certified and an H-1B petition approved
for the H-1B nonimmigrant shall pay the nonimmigrant the required wage
beginning 30 days after the date the nonimmigrant first is admitted into
the U.S. pursuant to the petition, or, if the nonimmigrant is present in
the United States on the date of the approval of the petition, beginning
60 days after the date the nonimmigrant becomes eligible to work for the
employer. For purposes of this latter requirement, the H-1B nonimmigrant
is considered to be eligible to work for the employer upon the date of
need set forth on the approved H-1B petition filed by the employer, or
the date of adjustment of the nonimmigrant's status by INS, whichever is
later. Matters such as the worker's obtaining a State license would not
be relevant to this determination.
(7) Wage obligation(s) for H-1B nonimmigrant in nonproductive
status.
(i) Circumstances where wages must be paid. If the H-1B nonimmigrant
is not performing work and is in a nonproductive status due to a
decision by the employer (e.g., because of lack of assigned work), lack
of a permit or license, or any other reason except as specified in
paragraph (c)(7)(ii) of this section, the employer is required to pay
the salaried employee the full pro-rata amount due, or to pay the
hourly-wage employee for a full-time week (40 hours or such other number
of hours as the employer can demonstrate to be full-time employment for
hourly employees, or the full amount of the weekly salary for salaried
employees) at the required wage for the occupation listed on the LCA. If
the employer's LCA carries a designation of ``part-time employment,''
the employer is required to pay the nonproductive employee for at least
the number of hours indicated on the I-129 petition filed by the
employer with the INS and incorporated by reference on the LCA. If the
I-129 indicates a range of hours for part-time employment, the employer
is required to pay the nonproductive employee for at least the average
number of hours normally worked by the H-1B nonimmigrant, provided that
such average is within the range indicated; in no event shall the
employee be paid for fewer than the minimum number of hours indicated
for the range of part-time employment. In all cases the H-1B
nonimmigrant must be paid the required wage for all hours performing
work within the meaning of the Fair Labor Standards Act, 29 U.S.C. 201
et seq.
Consultant A refused to give me my I-94 and H1-B papers to apply for a transfer. My transfer was filed by Company B within 1 month of approval of my H1-B with just the SRC/EAC number and no paychecks for the 3 weeks of employment on the H1-b.
UPDATE: 06/02/2004
The case has been approved by USCIS.
Question:
1. What is the possibility that my H1-B transfer will get approved? I do not have any paystubs for the 1 month from H1-B?
2. What is the usual DOL law regarding payment of wages for H1-b's? From my research, this is what I found. I am having trouble interpreting this. Is is ok for a person to be there in the US without pay for 60 days after H1-B employment starts or is he required to get paid from the day the H1-B application gets approved if he/she is already in the US?
TIA!! Please help.
For purposes of this paragraph (c)(6), the H-1B nonimmigrant is
considered to ``enter into employment'' when he/she first makes him/
herself available for work or otherwise comes under the control of the
employer, such as by waiting for an assignment, reporting for
orientation or training, going to an interview or meeting with a
customer, or studying for a licensing examination, and includes all
activities thereafter.
(ii) Even if the H-1B nonimmigrant has not yet ``entered into
employment'' with the employer (as described in paragraph (c)(6)(i) of
this section), the employer that has had an LCA certified and an H-1B petition approved
for the H-1B nonimmigrant shall pay the nonimmigrant the required wage
beginning 30 days after the date the nonimmigrant first is admitted into
the U.S. pursuant to the petition, or, if the nonimmigrant is present in
the United States on the date of the approval of the petition, beginning
60 days after the date the nonimmigrant becomes eligible to work for the
employer. For purposes of this latter requirement, the H-1B nonimmigrant
is considered to be eligible to work for the employer upon the date of
need set forth on the approved H-1B petition filed by the employer, or
the date of adjustment of the nonimmigrant's status by INS, whichever is
later. Matters such as the worker's obtaining a State license would not
be relevant to this determination.
(7) Wage obligation(s) for H-1B nonimmigrant in nonproductive
status.
(i) Circumstances where wages must be paid. If the H-1B nonimmigrant
is not performing work and is in a nonproductive status due to a
decision by the employer (e.g., because of lack of assigned work), lack
of a permit or license, or any other reason except as specified in
paragraph (c)(7)(ii) of this section, the employer is required to pay
the salaried employee the full pro-rata amount due, or to pay the
hourly-wage employee for a full-time week (40 hours or such other number
of hours as the employer can demonstrate to be full-time employment for
hourly employees, or the full amount of the weekly salary for salaried
employees) at the required wage for the occupation listed on the LCA. If
the employer's LCA carries a designation of ``part-time employment,''
the employer is required to pay the nonproductive employee for at least
the number of hours indicated on the I-129 petition filed by the
employer with the INS and incorporated by reference on the LCA. If the
I-129 indicates a range of hours for part-time employment, the employer
is required to pay the nonproductive employee for at least the average
number of hours normally worked by the H-1B nonimmigrant, provided that
such average is within the range indicated; in no event shall the
employee be paid for fewer than the minimum number of hours indicated
for the range of part-time employment. In all cases the H-1B
nonimmigrant must be paid the required wage for all hours performing
work within the meaning of the Fair Labor Standards Act, 29 U.S.C. 201
et seq.
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