Frequently Asked Questions - H-1
- Out of Status
- H1B Status
- Importance of having continuity of employment/pay stubs
- H-1 visa denial and investigation
- Compensation for H-1 lay off
- Status, authorized period of stay and unlawful presence
- H-1 without specific job/GC continuation without H-1
- US employee working from India
- New H-1 employee returning -- rights and issues
- Effect of Bankruptcy on immigration
- Unreasonable H-1 requests from CIS
- Are H-1 holders being turned back at the airport?
- When does CIS investigate fraud?
- H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend
- Employers questions on H-1 compliance
- Employer not paying, may I tranfer H-1?
A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'
As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.
Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.
In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.
For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.
1. This means that the consulate sent the case back to USCIS for review, revocation (and may be investigation of the employer). Usually, you should not have any issue with it. But from what I recall, if the case is revoked, you will be subject to the H-1 quota in future.
2. I do not see any implications for the individual unless the revocation was based upon some problem with the individual's qualifications.
There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.
Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.
Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.
1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.
1. I will be going to India and work for my company from India (before October if the H1b gets approved and continue to work from India if H1b is not approved).
Will you guys be able to answer the following questions for me? Is it okay for my company to wire the money (USD) to me monthly as individual consultation expense and will they have to pay any taxes to the Indian and/or US government for that?
There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).
Bankruptcy should have no effect on H-1 or on future green card. I am not aware of any immigration laws that could cause a problem for you.
USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:
If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.
The attached document explains the criteria.
1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.
Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.
1. Are we OK in keeping an H1B worker without work as long as we pay him during the project break too - at the LCA wage level.
Ans. You must pay your H-1 workers the legal wage. This is the higher of the prevailing wage or the actual wage. Actual wage is defined as that which you pay other similar employees in the same geographical location. So, as long as you pay the legal wage, there is no problem.
It is illegal for an employer to pay you in cash (or kind) and not deduct payroll taxes.
You can transfer. Ask CIS to "forgive" being out of status because this is not your fault. If you want to make your case stronger, file a complaint against the employer for non-payment of wages. Use this form:
You can also contact the local WHD of DOL where you are: