H1-H4 Help, Ginnu, Saigc and UN pls reply!!

[Jaggy]

Hello gurus
My wife recently got an H1B approved through a company with a start date of Oct 1st. She has started working for the company but looks like it is not in good shape and hearing that they have not paid their past employees.

Her old H4 visa stamp is valid till may 31st 2005 with the same date on the I94. She has also filed for I485 along with me.

If she does not get paid then

1. Is she out of status?
2. If she gets 2-3 paystubs then I believe she will have no trouble in doing an H1B transfer or an H1-H4 transfer, am i right?. How many paystubs are needed to either do a transfer or change the status from H4-H1.
3. If she goes out of country say India or Canada and comes back in US showing her old H4 visa then does she automatically come back to H4 status.?
4. Is there any advantage since her I485 has been filed(although we havent received the receipt yet).
5. Finally what do we have to do to keep her in status?

Guys your help will be greatly appreciated!!!
Jaggy

 

[saigc]

Hello gurus
My wife recently got an H1B approved through a company with a start date of Oct 1st. She has started working for the company but looks like it is not in good shape and hearing that they have not paid their past employees.
if the h1b is approved (along with change of status - with new i94 attached to it) with effective date of Oct 1st then how can she work now. its illegal to work without proper work authorization. If you have approved valid ead then she should be fine.

Her old H4 visa stamp is valid till may 31st 2005 with the same date on the I94. She has also filed for I485 along with me.

If she does not get paid then

1. Is she out of status?
no. its different being out of status and not mainting status. BUT working without proper work athorization is very serious offense.
2. If she gets 2-3 paystubs then I believe she will have no trouble in doing an H1B transfer or an H1-H4 transfer, am i right?. How many paystubs are needed to either do a transfer or change the status from H4-H1.
3. If she goes out of country say India or Canada and comes back in US showing her old H4 visa then does she automatically come back to H4 status.?
yes
4. Is there any advantage since her I485 has been filed(although we havent received the receipt yet).
only advantage of filing i485 is that by law attorney general has given that person the authorization to stay unlimited period until the adjustment of status petition is adjudicated. as you have not recieved your i485 receipt i presume that you/your wife probably wouldnt have got ead in which case you wife is currently working without proper authorization which has got serious consequences. better stop working.
5. Finally what do we have to do to keep her in status?

Guys your help will be greatly appreciated!!!
Jaggy

 

[Jaggy]

She has worked only for 2 days before Oct 1st and it is a voluntary work and wont be paid for that, just to get a hang of things before she goes in full swing. I am sure there is nothing wrong in doing voluntary work.

 

[Arthur2k]

First of all, in some instances it is NOT ok to do voluntary work. Specific case - whenever a person is taking away a job (despite doing it on a free basis) from somebody else who would need to be paid to do the same job (same qualifications, etc) - its is not OK.

Second, your wife is in H1B status now, if she doesn't get paid - she is out of status.

Why didn't you file for EAD and advance parole for her along with the I-485?

 

[saigc]

She has worked only for 2 days before Oct 1st and it is a voluntary work and wont be paid for that, just to get a hang of things before she goes in full swing. I am sure there is nothing wrong in doing voluntary work.

would you accept if your auto insurance company charge you from the day you called for the quote irrespective of effective date?

doing voluntary work does not require authorization BUT if that job is performed by greencard holders or citizens who are required to be paid then its illegal. voluntary work may be possbile only in charitable organization and NOT consulting firms.

you may claim that no one may know about it as she is not paid for those 2 days but THAT employer knows it. BAD employer will use agaist you when you demand your rights (ofcourse they will be even more serious trouble if they expose you). its better to be in right path.

 

[Jim Mills]

Don't you guys think this is pretty heavey handed.

Let's keep everything in perspective.

I don't. It is unauthorized employment and could cause a problem. There is no realistic way to argue that this is volunteer work since she applied for and received an H-1B visa for the employment and will be paid 2 days later.

 

[saigc]

We are in a similar situation, and will appreciate some help.

Below are the details:
My wife who was on H-4 got a job offer six months ago, the company applied for her H-1B which got approved last month, but due to some personal reasons, she won't be able to work for next six month, basically she dropped the idea of working for a while and did not take up the job offer.

1) Is she out of status due to the fact that, the employer got an H-1B approved for her ?
it depends on the h1 approval notice. if she has got i94 attached to it then she is in h1 (irrespective of start of work depending on approval effective date). no paystub/no work on h1 is illegal. period. you have to convert her to h4 again but better do it prior consulting with very good immig lawyers as its very sensitive.
2) or she is still on H-4, since she never took the job offer. it does not matter whether she takes the job or not in h4 to h1 conversion (when i94 comes with h1 approval notice)
3) Do we have to apply for an H1 to H4 transfer now ?

Just so you know, we recently applied for EB based I-485/EAD with my wife as a derivative.

Please help.
Thanks