US Citizen filling I-485 for spouse

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sapro

Registered Users (C)
Hi forum members,
I am a US Citizen (naturalized) and applying Green card for my spouse who is in US with me on a H1B Visa. Currently, my spouse is in the process of filling form I-485.

1.
On Part 2 of I-485 -- Application type I am applying for an adjustment to permanent resident status because:

which checkbox should my spouse select? Is it a. or b. ?

2.
Secondly, my spouse is still looking for a job and currently unemployed. What should my spouse fill in 'Current Occupation' of Part 3. Processing information?

Thanks for the response in advance.
 
I think you can wake me up from my deepest sleep now and I can still answer your first question, it's always 2A.

I'm curious how your spouse is unemployed and in H-1B status. They don't go well together.
 
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I did a little web search and most people suggest writing "Unemployed" for current occupation if you're not working.
 
Thanks for the response. My spouse just came on December 2007 during the slow period. That's why she is still looking for a job.
Is there a minimum or maximum time within which she should get a job?
 
sapro said:
Thanks for the response. My spouse just came on December 2007 during the slow period. That's why she is still looking for a job.
Is there a minimum or maximum time within which she should get a job?
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How can your spouse come here on an H1 and still be unemployed and looking for a job at same time? Being on an H1 MEANS you're employed - a person cannot get an H1 on their own, it must be sponsored by an employer. If your spouse entered by using an H1 without an underlying job, then she entered fraudulently.

How did she get an H1 without having a job?
 
I guess I didn't describe it properly. She has a job offer from the sponsoring company for an in-house project before she came to US. Please be clear that she has a VALID H1B. The sponsoring employer is looking for a job in her field.
 
The employer relationship needs to exist from the first day your wife is in H-1B status until the day she changes to another status.

Do I understand it correctly that an employment relationship in fact exists with the sponsoring employer, but she's just not working? Then she's employed and her current occupation would be whatever is stipulated in her LCA.

Is she getting paid the prevailing wage, or considered to be on an unpaid leave or something? My understanding is that in some circumstances if she's on a leave she still maintains H-1B status. But you're quickly getting towards gray areas of the law and your wife should be sure she documents her intent to work for the employer when she entered and why she's been unable to do so.

You may want to google H-1B employer relationship intent and H-1B unpaid leave for more information. From what I read, a leave may only be acceptable when it's something the employee desires (medical etc.) but not when the employer forces the employee go on leave. The employer may even be required to pay back wages.
 
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sapro said:
Please be clear that she has a VALID H1B. The sponsoring employer is looking for a job in her field.
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Unless she is getting paid (and when you describe her as "unemployed" I doubt she is) then you should assume that the H-1 is no longer valid. It's not a problem for filing her I-485, but it is something you should be aware of.
 
TheRealCanadian said:
Unless she is getting paid (and when you describe her as "unemployed" I doubt she is) then you should assume that the H-1 is no longer valid. It's not a problem for filing her I-485, but it is something you should be aware of.
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Well, I wouldn't jump to that conclusion just yet (but I agree it would be a more conservative assumption than assuming it continues to be valid). If it as a well documented unpaid leave of absence that occurs for certain reasons and reasonable time, H-1B status can still be maintained.

But I would agree that if the situation is that the person is not getting paid because the employer doesn't find any projects to work on, H-1B status is likely not maintained. I'd like to add that such employers are doing a big disservice to H-1B workers.
 
austriacus said:
If it as a well documented unpaid leave of absence that occurs for certain reasons and reasonable time, H-1B status can still be maintained.
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The H regulations are very specific on this subject. If the alien is on unpaid leave, that is a violation of H status. The only grey area might be FMLA. If the alien is on the bench unpaid, that is a black letter slam dunk status violation.
 
TheRealCanadian, I think we are in agreement and it does sound to me like the OP's wife is not voluntary, I just wanted to them to be aware of the difference.

Here's a portion of Department of Labor law for H-1B labor condition application compliance, 20 CFR §655.731(c)(7):

(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 DHS 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.
(ii) Circumstances where wages need not be paid. If an H-1B
nonimmigrant experiences a period of nonproductive status due to
conditions unrelated to employment which take the nonimmigrant away from
his/her duties at his/her voluntary request and convenience (e.g.,
touring the U.S., caring for ill relative) or render the nonimmigrant
unable to work (e.g., maternity leave, automobile accident which
temporarily incapacitates the nonimmigrant), then the employer shall not
be obligated to pay the required wage rate during that period, provided
that such period is not subject to payment under the employer's benefit
plan or other statutes such as the Family and Medical Leave Act (29
U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C.
12101 et seq.). Payment need not be made if there has been a bona fide
termination of the employment relationship. DHS regulations require the
employer to notify the DHS that the employment relationship has been
terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and
require the employer to provide the employee with payment for
transportation home under certain circumstances (8 CFR
214.2(h)(4)(iii)(E)).

There's also a little blip about this on a USCIS page:

Q : Must an H-1B alien be working at all times?

As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
 
So, let's assume in the worst case the OP's wife entered and never actually worked for the employer (sounds like the employer had a project lined up for her which never materialized and she was immediately put on leave). Could it be construed as a fraudulent entry? It sounds like she entered intending to work for the employer, so no fraud committed according to me. Could we say she basically was in H-1B status right after her entry, but fell out of status the next day when she didn't work? (I don't recall if there's a grace period to start work when you first enter.) And now it's a status violation that will not affect her case?
 
austriacus said:
Could it be construed as a fraudulent entry?
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USCIS would need to provide evidence that she actively knew that she would not be working upon entry and did not intend to work.

And now it's a status violation that will not affect her case?
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As an Immediate Relative, she could be out of status for 30 years and it won't affect the case.
 
I think i will explain it again.....

My spouse has a valid H1B Visa and came to US on December. Her current employer/sponsor is now looking for a project/client for her to start the Job assignment. The policy of H1B employers is that some pay the employees when they continue to search for the project (while on bench) after landing in USA and some don't pay the employees during this period of time.

My spouse is not paid by her current sponsor/employer, but the employer/employee relationship is still maintained with the sponsoring employer who is still looking for a project/client for her.

As 'austriacs' mentioned, I would like to fill the I 485 form Part 3, with current occupation found in LCA for the question "Current Occupation".

She received a latest Employment letter from the employer 1 month before landing in USA with the employment date. So, should she fill this date for the question - 'Date this Employment Began' on Question 15 of Form I-130?
 
sapro said:
The policy of H1B employers is that some pay the employees when they continue to search for the project (while on bench) after landing in USA and some don't pay the employees during this period of time.
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The policy of USCIS is that any time an H-1B alien is not working or not being paid, they are out of status. You can explain this all you want, but this is the reality.

My spouse is not paid by her current sponsor/employer, but the employer/employee relationship is still maintained with the sponsoring employer who is still looking for a project/client for her.
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Yes, but H-1B status is not.

As 'austriacs' mentioned, I would like to fill the I 485 form Part 3, with current occupation found in LCA for the question "Current Occupation".
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That's fine.

So, should she fill this date for the question - 'Date this Employment Began' on Question 15 of Form I-130?
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Whenever she started "working" for this employer.
 
sapro, read the portion of the law I quoted a couple posts above carefully. H-1B employers are required by law to pay the prevailing wage even for nonproductive time.

I believe the unpaid leave provision where H-1B status is maintained has to be if the leave is for the benefit of the employee and probably needs a documented time period. Otherwise, where do you draw the line ... let's say instead of laying an H-1B employee off, they put him/her on an unpaid leave with no specific future work date and several non-working years later the person applies for AOS and claims to still be in H-1B status. Seems very unlikely to me.

But, when in doubt you may want to check with a lawyer what all counts as "maintaining the employer/employee relationship" and report back your findings!
 
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