H1 - H4 Issues

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krisInTx

Registered Users (C)
Hello Rajiv,

I appreciate your taking time out to answer our questions.

I'm in the US for around 2 years on H1 and my wife joined my on H4 last year. She applied for H1 through an Indian consulting firm and got her H1 approved (as per the status on USCIS). We have been in touch with the consultant and we have not been able for find a project for her so far. He has been sending us a lot of in compatible job offers (requirements do not match her skills), and we had declined a couple of projects due to location reasons.

The consultant recently asked us to provide him with a notarized letter stating that due to personal reasons my wife has chosen to be on leave without pay. On enquiring further, he has told me that her H1 was issued with an automatic change of status and that she has been on H1 since October. :eek: This was a big surprise to us and on reading through various messages boards I understand that she cannot be on H1 without working/ having pay stubs.:mad:

I asked him to provide us with copies of petition and i-94 so that we can check the same, he refuses to do so without getting a notarized leave of absence letter from us.:mad:

I'm here on H1 and my wife has a H4 through me and both are up for renewal in May 09. We don't have a stamped H1 / H4 to leave the country and re-enter on dependent visa. Given these circumstances :

1. What is the best course of action to ensure that she gets back to a legal status in the US - on H1 or H4 visa ?

2. Would it make sense for her to return to India immediately and get H4 stamped ? Will her H1 create problems ?

3. Any other thing we need to do in order to ensure that we stay on the right side of the law ? What do we do about the last 5 months for which we do not have a pay slip ?

Thanks!!!
Kris
 
Last edited by a moderator:
krisInTx said:
Hello Rajiv,

I appreciate your taking time out to answer our questions.

I'm in the US for around 2 years on H1 and my wife joined my on H4 last year. She applied for H1 through an Indian consulting firm and got her H1 approved (as per the status on USCIS).
-----------------------did the employer file H4 to H1 Change of status?
We have been in touch with the consultant and we have not been able for find a project for her so far. He has been sending us a lot of in compatible job offers (requirements do not match her skills), and we had declined a couple of projects due to location reasons.

The consultant recently asked us to provide him with a notarized letter stating that due to personal reasons my wife has chosen to be on leave without pay.
---------------------Employer is playing a trick not to pay the wages from the start date of her H1. If your wife files complaint with DOL then DOL will recover her wages from the date she has been on H1. If she gives employer notarized letter stating that due to personal reasons she has chosen to be on leave without pay then she will not get anything and DOL cant help her. After the arrest of H1 company owners they have started getting the letters so that they can save themselves. I will not give that letter and will file complaint with DOL and will recover the wages. DOL may fine the employer.Employer has to pay the wages according to LCA. Bench is not allowed on H1. Project or no project employer has to pay minimum wages according to LCA. Keep the evidence of employer asking letter and ask for the wages.
On enquiring further, he has told me that her H1 was issued with an automatic change of status and that she has been on H1 since October. :eek: This was a big surprise to us and on reading through various messages boards I understand that she cannot be on H1 without working/ having pay stubs.:mad:

I asked him to provide us with copies of petition and i-94 so that we can check the same, he refuses to do so without getting a notarized leave of absence letter from us.:mad:
--------------------File complaint with DOL.
I'm here on H1 and my wife has a H4 through me and both are up for renewal in May 09. We don't have a stamped H1 / H4 to leave the country and re-enter on dependent visa. Given these circumstances :

1. What is the best course of action to ensure that she gets back to a legal status in the US - on H1 or H4 visa ?
------------------- File complaint with DOL. send email/fax to employer that according to law he must give the H1 approval and I-94 to your wife and if he does not give in 2 days you are going to file File complaint with DOL.
2. Would it make sense for her to return to India immediately and get H4 stamped ? Will her H1 create problems ?
-------------------I dont know from what date her status from H4 to H1 was changed.
3. Any other thing we need to do in order to ensure that we stay on the right side of the law ?
What do we do about the last 5 months for which we do not have a pay slip ?
-----------if her H4 to H1 was approved then she is out of status as she does not have pay stubs.
Thanks!!!
Kris
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http://www.dol.gov/esa/whd/contact_us.htm
Contact Us

Having trouble finding your answer on our website?

Call the Wage and Hour Division’s toll-free help line:
1-866-4USWAGE (1-866-487-9243)
TTY: 1-877-889-5627
Monday-Friday 8 a.m. to 8 p.m. Eastern Time



Find your state DOL
http://www.dol.gov/esa/whd/america2.htm
http://www.dol.gov/dol/location.htm

------------------------
 
Filing complaint with DOL.

Ginnu,
Thanks for a quick response.

Has anyone filed a complaint with DOL in such cases ? How did it go ?


Thanks in Advance
Kris
 
krisInTx said:
Ginnu,
Thanks for a quick response.

Has anyone filed a complaint with DOL in such cases ? How did it go ?
------Many have filed and recovered the wages. Just talk to DOL on the phone and file the complaint.At this time DOL is investgating frauds/noncompliance with H1B requirements and IT consulting companies are particular targets of these enforcement efforts.

Thanks in Advance
Kris
Click to expand...
---------
 
A related query

Thank you e3 and ginnu for your prompt responses. Here is an update on the situation and a related query.

We went to USCIS today and asked them about this situation and inquire what my wife's status on their system was. The officer over there informed us that my wife's H1 petition was approved in September and the papers were sent to the employer. She was also given an I-94 which is valid till 2011. But her status has not changed to H1 and is still H4. She also told us that I-539 (not sure) was filed with the H1.

My question is:

1. If we are given a I-94 with H1, does that mean an automatic change of status ? Is it possible to get a I-94 with H1 petition and still be on H4 ? Does this occur frequently?

2. Is there any other way of confirming her current status ?

I have written to the consultant three times till today asking them for the documents and they are yet to respond to my mails.

Will keep you updated on the situation. Appreciate all of your help in this regard.

Regards

ps: I was very worried about this. Now after speaking to USCIS i don't know whether to be worried or not :confused:
 
Yes,

I went to the local USCIS office and gave them the H1 filing receipt number. Based on that we got this information.

Kris
 
Pawan,

I spoke to the consultant and got a copy of the documents. Her status is H1 and it has been so since Oct 08.I'm speaking to an attorney on the next steps. Looks like the folks at USCIS did not give us the correct information.

Will update the forum. If others have gone through this process please share your experience so that it can help others as well.

Cheers
kris
 
I spoke to an attorney, per him the change of status is only be in effect if we accept the employment that means, if we received all the papers including 797 and applied for SSN. If this is not the case then we haven’t accepted his employment and old status is still applicable.

Can anyone please validate this statement?
 
pawaninus said:
Ginnu,

Are you agree with attorney?
Click to expand...

1.If she came to US on H4 and then US employer filed H4 to H1 change of status and she got I-94 attached with H1 approval then she was approved for H1 and was on H1 from the start date and her LATEST I-94 was based on H1.
2. If she came to US on H4 and got I-94 based on H4 status then she is on H4 status.
3.If employer did file H1 and not H4 to H1 COS and no I-94 was attached to her H1 approval then she is on H4 status.

Her latest I-94 decides her states.
 
Yes,she came to US on H4 and then US employer filed H4 to H1 change of status and she got I-94 attached with H1 approval.
 
pawaninus said:
Yes,she came to US on H4 and then US employer filed H4 to H1 change of status and she got I-94 attached with H1 approval.
Click to expand...
Her status got changed to H1 as she got I-94 attached with her H4 to H1 COS approval notice. I-94 decides her states and her LATEST I-94 is based on H1.
 
ginnu said:
Her status got changed to H1 as she got I-94 attached with her H4 to H1 COS approval notice. I-94 decides her states and her LATEST I-94 is based on H1.[/QUOTEMakes sense, thanks for your quick response. I will seek further clarification from attorney for the statement.
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