Frequently Asked Questions - Employee

Employees working in USA

  1. Licensing of Foreign Persons Employed by a U.S. Person
  2. Government Shutdown – Impact on Immigration Matters
  3. Ability to Pay
  4. AC21 and losing job
  5. Out of Status
  6. H1B Status
  7. Must we withdraw a PERM application if the employee is laid off?
  8. Importance of having continuity of employment/pay stubs
  9. Questions on AC21, EAD, losing job, etc.
  10. Divers Licenses, while H-1 extension pending
  11. AC21 - accepting a green card
  12. Compensation for H-1 lay off
  13. H-1 denial, appeal, MTR
  14. Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B
  15. H-1 without specific job/GC continuation without H-1
  16. US employee working from India
  17. New H-1 employee returning -- rights and issues
  18. Effect of Bankruptcy on immigration
  19. Are H-1 holders being turned back at the airport?
  20. Employers and Employees -- H-1 or EAD?
  21. GC approved. When should I start working on the green card job?
  22. GC Compliance for Employers
  23. Starting business while in AOS/I-485/H-1/H-4
  24. Employers questions on H-1 compliance
  25. What happens when an employer is under criminal investigation/indictment?
  26. Employer not paying, may I tranfer H-1?
  27. Consequences of DUI's on naturalization and green card
  28. Does lay-off affect natutralization?
  29. Can Employer Withdraw My Green card Application?
  30. Processing Times Involved in NIW
  31. No loss of priority date if employer revokes I-140; Green card through future employer
  32. New company filing H-1
  33. H-1 employer not paying
  34. USCIS Updated Questions &Answers on the H-1B Employer-Employee Relationship
  35. Can H-4/F-2, etc. non-work visa holders volunteer?
Licensing of Foreign Persons Employed by a U.S. Person

When is a foreign person considered an employee?

Government Shutdown – Impact on Immigration Matters

A1. Yes. In my view, that obligation continues unabated.

Ability to Pay

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

AC21 and losing job

AC21 should be filed. The fact that you were out of job for 8 months is irrelevant. As long as the jobs are same or similar, you should have no issues.

Out of Status

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'

H1B Status

As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.

Must we withdraw a PERM application if the employee is laid off?

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.

Importance of having continuity of employment/pay stubs

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.

Questions on AC21, EAD, losing job, etc.

1A.  Yes.

2A. Yes, but you will then lose H-1 status (which can be revived by reentering USA using an H-1 visa during the life of your H-1 and taking up single-employer job with the H-1 sponsoring employer – not a difficult task, usually).

3A. Correct. You are in authorized period of stay. That has been explained in my blog.

4A. You can stay as long as CIS does not send an RFE or a Notice of Intent to Deny requiring you to prove similar, alternate employment (AC21 portability – also explained in detail on my blog).

Divers Licenses, while H-1 extension pending

I had a discussion on this just yesterday with an employer who has 19 employees in a similar situation in various States. The problem here is, while USCIS regulations do permit a grace period of 240 days to continue working, most States have no clue about it. While, this is a good topic for advocacy, short of suing the States, the best thing is to just premium your pending H-1.

AC21 - accepting a green card

A1) There is no formal procedure other than joining, preparing a Form I-9, being on the payroll and actually working.

A2) You can behave like you would in any other permanent job - take vacations, etc.

A3) That question has been answered on my blog. See http://forums.immigration.com/blog.php?b=36

Compensation for H-1 lay off

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.

H-1 denial, appeal, MTR

1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.

2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.

3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.

4) No.

5) No.

Employee's complaint for non-payment of salary-E-3, H-1B and Non H-1B

Your best bet is the local State Workforce Agency for the State where you are employed. If you are not on H-1, this is the way to go. They will recover your salary. And, it does not cost you anything.

Here is the link to the SWA's for non H-1B workers http://www.doleta.gov/regions/reg01b...ources-SWA.cfm

H-1B and E-3 workers, go here:
 

H-1 without specific job/GC continuation without H-1


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.

US employee working from India

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?

New H-1 employee returning -- rights and issues

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).

Effect of Bankruptcy on immigration

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.

Are H-1 holders being turned back at the airport?

If this is all what happened, then the govt. has acted illegally. There is no question in my mind about it.

Employers and Employees -- H-1 or EAD?

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

GC approved. When should I start working on the green card job?

Yes, now that the GC is approved, your employer should "permanently" give you the job described (including the title, salary and job duties) in the Labor Certification. This change should take place within a "reasonable time" after the GC approval.

Keep in mind, "permanent" does not mean forever. This term describes a job that has no pre-decided termination date. We see no violation of the law, If the employer, due to economic or other circumstances, can no longer support the job after having offered it to you in good faith.

GC Compliance for Employers

Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?

Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.

Starting business while in AOS/I-485/H-1/H-4

1. She can NOT do this on H-4. Once you folks file 485 and get EAD, things will be different.

You can then be a passive investor (performing no work type activity for the company) even while on H-1. You can also be an active investor if you wish to move to EAD as long as you maintain your intention to work full time for the GC sponsoring employer. Your wife can work for the company, own it, be partners, etc. as long as she has the EAD.

Employers questions on H-1 compliance

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.

What happens when an employer is under criminal investigation/indictment?

That depends upon whether or not the conspiracy was in fact in relation to the pending cases. For example, if the fraud/conspiracy involved non-payment of H-1 employees, that should have no affect on pending green card cases. 

Employer not paying, may I tranfer H-1?

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:
http://www.dol.gov/whd/forms/wh-4.pdf

You can also contact the local WHD of DOL where you are:
http://www.dol.gov/whd/

Consequences of DUI's on naturalization and green card

Let us look at the law for green cards and removal (deportation) first.

Remember the following GENERAL elements of the law (there is more to it).

Does lay-off affect natutralization?

 I see no reason to worry here. Neither the civil cases nor the fact that you have left and taken a PT job should have any bearing on your naturalization.

Can Employer Withdraw My Green card Application?

Ans1. They can withdraw the 140. That is their petition, but they cannot withdraw the I-485. That is your petition. If they withdraw the I-140 you can still take recourse to AC21 and not suffer any negative consequences.

Ans2. If you are covered by AC21, you should be fine.

Ans3. File AC21 letter as soon as possible.

Ans4. Sure .

Ans5. See this link: http://www.immigrationportal.com/blog.php?b=25

Processing Times Involved in NIW

You can change employers any time if you are a self-applicant and will continue to work in your stated area of national interest.  But NIW priority date will take the same time as a normal EB-2 application does.  See: 

No loss of priority date if employer revokes I-140; Green card through future employer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.   

https://youtu.be/H_VV9kV_lOg?t=688

New company filing H-1

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

H-1 employer not paying

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

USCIS Updated Questions &Answers on the H-1B Employer-Employee Relationship

No. This memorandum does not change any of the requirements for an H-1B petition.

Can H-4/F-2, etc. non-work visa holders volunteer?

This question is raised often and debated much amongst lawyers focusing their practice on employment-based immigration.  I have a call scheduled with a corporate client who is considering the legality of accepting a volunteer in their for-profit IT business.