Is this kind of H1 transfer possible?

S

siva001

New Member
Dear Sir/Madam,

I changed jobs from Company A to Company B last November. Consequently, I got company B immediately file for my H1 transfer. I started working upon the receipt of notice, and I gather from previous discussions that this is okay.

Here's my problem though. Company B now has financial difficulty and we are not receiving paychecks for over a month now, and the future is uncertain. Company 'B' intends to pay the salaries once teh finances are set right.

1. Is someone out of status if this occurs?

2. I have found another job in the meantime, would it be possible for me to apply for another h1 transfer? Would this make a valid case at INS? How should this be handled?
Has anyone been through a similar situation or now of someone who has?

3. If INS denies this transfer, will it affect the current processing of my H1 for company B (which I can continue on if things are sorted out?)

Thanks,


Siva
 
My take...

#3) The H1 transfers which you would be undertaking are independent of each other. There is almost no chance that the INS will tie both of them together...even if it does..having multiple H1 applications pending is ok.

#2) It is highly unlikely that INS will grant a H1 transfer if you cannot submit current paystubs at the time of filing H1 for the new job offer..you have to show you are in current legal status...maybe you can file then get an rfe..hopefully by that time your current company has started paying you again and you have paystubs to prove it. But once again..you are will have to link your H1 approvals and pending approvals together..somthing like..previous h1 approval + current H1 pending -> paystubs from current company -> next pending H1...get a lawyer.

#1) I dont know you are illegal in status now..if you company pays back all the pending pay then you will be fine for the future..as a general rule you got to have a paystub and a job and a valid I-94/pending H1 application at all times to be legal in H1 status.
 
I've always wanted to do an H-1 "transfer" in this situation. Here would be the argument to permit it:

1. The person is currently working and has time slips to prove it.

2. If the company was acting legally, and issuing paystubs, there would be no issue that the person is validly in status and the "transfer" would occur without question.

3. The company is acting illegally and not paying the employee. This should not mean that the person can't now "transfer" his visa. It is the company that is acting illegally and the person is doing everything in his (or her) power to maintain status, including working for the sponsoring employer. The sponsoring employer's illegal acts should not be held against the H-1 holder who should not be further penalized.

I don't know how this would come out but it would certainly be interesting to try.
 
However...

Jim,

In such cases..the company has no money to pay and the company management think that they are doing a favor to the H1 employee by not laying him off and withdrawing his H1 approval. Sometimes it is true that the employee is better off hanging in limbo while he lands a new job and asks the new company to apply for a NEW H1 for him, from which he can get a new visa outside the country and then re-enter. If in the time the employee is in limbo ( job without pay ) the person still has an un-expired I-94..he is out of status but not in illegal status.

I dont think the INS is going to look at H1 employees who got fired in the same way it looks at battered immigrant spouses..by assuring them of a status and a work permit.

Even though the company may be acting illegally,
it is not worth to be a whistle blower, it is always the employee who will get hit the worst..no job, no money, back to home country..the company will get a fine and maybe will not be able to hire H1 workers...just a rap on the knuckles.
 
siva,

I believe that while pay stubs help you to prove that you are in status, they are NOT REQUIRED by INS to transfer H1 to H1. You might send your application without pay stubs and do not receive RFE to send in pay stubs.

I transferred my H1 from company A to company B a year ago and my immigration lawyer suggested that we did not enclose pay stubs at that time. If INS sends RFE, then we will think how to prove that I was in status (by sending pay stubs was one way.)
INS approved H1 to H1 transfer without requesting for pay stubs.

And I agree with others, may be there is still hope that your company will pay you back ... BUT watch out ! It is not a good sign.

Wish you good luck!
 
tt tt

So instead the employee gets to sit in the US (maybe work sometimes but not get paid for it) and effectively have no job and no money. I don't see how the company can say they are doing the employees a favor by keeping them on and that the employees should just remain quiet regarding the company's illegal activities.

As far as the sanctions just being a "slap on the wrist", tell that to Dr. Mohan Kutty in Florida who was required to pay employees more than million dollars in back wages and Pegasus Consulting in New Jersey who was just recently required to pay employees more than $221,000 and was fined an additional $40,000 due to its "flouting" of the H-1B regulations.

I am currently litigating several of these cases and claims for unpaid wagesin any amount (at least in New Jersey) also can statutorily obligate the employer to pay the employee's attorney fees.

See: http://www.ilw.com/lawyers/immigdai.../2002,1203.shtm which states:

Today, we bring you news of another large back pay award by the Department of Labor against an employer in a case connected to "benching" or in the words of the administrative decision "leave without pay." As our readers will recall, in October this year, the Office of Administrative Law Judges at the Department of Labor announced a record $1 million plus in back pay In the Matters of Wage and Hour Division v. Mohan Kutty, Nos. 2001-LCA-00010 through 2001-LCA-0025 (OALJ, Oct. 9, 2002). Today's decision, In the Matter of Pegasus Consulting Group, Inc., No. 2001-LCA-00029 (OALJ, Nov. 13, 2002), almost a quarter million dollars in back wages was awarded and the employer was assessed $40,000 in civil penalties for committing a willful/knowing violation. Unlike the 100+ page Kutty decision, today's document is only 10 pages long. Attorneys with practices involving H-1Bs, i.e. virtually all business immigration practitioners, will likely find a review of this administrative decision instructive.

For those interested, see http://www.oalj.dol.gov/public/ina/decsn/01lca29a.htm
 
This is a good trend.

If you can go after and make the people who run the 'sweat-shops' for H1 employee pay thru the nose...I am so glad that such things are happening.

It is just that the odds seem to be stacked against H1 employees who have just started working in the USA, thay have to tackle a combination of
1) a suspension of pay
2) the threat of illegal status combined with threats of legal action ( if you leave the company we will claim damages in lost contracts ) .sometimes even holding large deposits of money from the employees in their home country as a 'bond' to make sure that the employees dont leave the job at any time.
3) sometimes even withholding original documents like H1 approval notices/degree certificates from employees.
4) Lack of knowledge of the options that they have under such circumstances.

Given a combination of circumstances listed above, fewer than 1% of the total H1 employee population without pay..will come forward.

But once again I am so glad that some of these gross violators are getting caught .

thanks
Jim.
 
Out of payroll

One of my friends did not have any projects and so was asked by her employer to leave (since he didnt have anything for her). She wanted to try options on her own. So she is staying with her friends and trying to find an opening. She has been without pay for 4 months now. Recently she cleared an interview for a position and they want to transfer her visa. It seems her current employer has taken her out of payroll. Does anyone have suggestions what she can do. The new company says that they wont do her visa transfer without at least 2 recent paystubs.. Any help/suggestions appreciated.

Thanks
 
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