A shortlist of how to get your past salary back...
I have created a list of things /options for somebody who is on bench for more than 2 months. This is my take on it and should not be considered as legal advice.
Option A: I want to hang around until I find a project, no matter what.
Option B: I want my money back and go home or try something else.
Option A: I want to hang around until I find a project, no matter what.
1. Without paystubs, it is difficult to do a h1 transfer. If the new employer is willing to take the risk and you think INS will answer your prayers , you can go for a h1 to h1 transfer. INS has approved a transfer after 6 months in bench before. It has also asked some of the applicants to get a new I94 before starting work. And it has also refused approval for some....
2. Upgrade a skill by attending some training or doing some certification. For some, randomly adding new skill keywords in the resume has helped, but I presume that you have come here to earn a honest money here in US. Use this bench time not to get depressed or twiddling thumbs, but to to introspect and upgrading your skills.
3. If you have confidence, have sufficient resources and a sympathetic and well connected employer you might find a project.
Once you do, dont forget to save for the rainy day
Option B: I want my money back and go home or try something else.
1. Have copies of your H1, LCA, visa stamps made. Summarize all the dates in a document (approval dates, joining dates, promotion/increment dates, pay stoppage date, bench money stoppage date). Copies of bench money check, guest house stay dates might also be required.
2. Consult an immigration attorney. Mention your company's name and find out whether there is a conflict of interest for the attorney. This initial enquiry can also be done by a friend who confirm about the conflict of interest.
3. Present your case details by making an appointment with the lawyer. List all options with the lawyer , for each of them stating what you are ready for.
4. Make a letter about non payment of salary by your employer, seal it, date it and post it to your friend here in US (who is in a stabler position then you). Ask him to submit this sealed cover (with postmark date etc.) to INS if you are deported. Include once again the date summary document and copy of latest documents.
5. Be prepared,packed and ready to leave. Pay lawyer a initial fee, make arrangements with friend to followup the case and authorize to receive and settle your dues and to receive the settlement compensation on your behalf, if employer cancels your H1.
Other caveats
1. As far as I know h1b holders do not have any labor law umbrella to cover them. i.e. No rights.
2. Minimum you can get should be back wages and return airfare.
3. You can come back again after finding another employer. Your future h1 approval will not be affected by you receiving bench money.
4. However, if you are with one of those companies who you think will spread rumors about you, insist at the time of settlement that the employer should give a good reference letter about your work.
I think there will be others who will add more to this list. Please add genuine factors and ideas about how to do deal with this situation. No wise cracks please.
