Filing a DOL against employer to support H1B transfer RFE response

[Nitesh15]

Hi,

I have applied for H1b tranfer in september 2011 to new employer and received an RFE requesting the previous 2 months paystubs and all w2's, Since I could not submit them with the transfer application.

The issue is with my previous employer

-He never paid me on time

-cut amounts in the paycheck on some 'payroll runnig fees'

-never gave me paystubs

-even did not ran the payroll on proper times.

-he has still around 3-4 thousand pending to be given to me.

When working on a project with him, he would do irregularly do direct deposit in my bank account from his account, for some random amount.

I joined new company in september 2011 finally without the paystubs and hence got the RFE..

Now After 4 months almost I have received the paystubs from my previous employer which I am using to respond to RFE.

The lawyer has found out some issues with the paystubs

-They are of varying amounts

-All paystubs from May-August 2011 are run on or after October 2011 (the date is on the paystubs)

The lawyer has asked me to get a letter of explanation from the previous employer for these things or if not I should file a DOL WH4 based case against him for non-payment.

The RFE response date is few days from today and I need to know if I have the enough time to file DOL case and attach it with the RFE response

It does sound right now that going for the DOL filing is the way to go..

My Employer had given me the reason once that due to financial problems the pays arn't on time.. so I requested him to give me the same in letter now..and he said no..he actually says that I can join him back as he has not cancelled my H1.

Please advice on the best way out..

Thanks

Priyank Devurkar

[Chitown01]

File DOL complain and give the paperwork to the attorney and he will take care of the rest.

[Nitesh15]

According to the latest update from the Attorney is that She is giving me a Letter to sign, which has the issues discussed above with my previous employer. Filing a DOL complaint should be done seperately, according to her that should not be included with the H1B RFE response. The letter will have in writing all the details that I was having with my previous employer, his non co-operation and efforts still on to resolve them. (in Addition to this I have asked to my employer for a letter explaining the delays and missed pay, paystubs, difference in amounts).

Also the lawyer (I will be speaking to her once more before the submission) has an opinion that the H1B will be converted to consular processing although she is submitting for extension of stay due to documents and paychecks related issues.

I know that in consular processing I need to go out of the country and gets the new H1 stamped before I can continue working and in extension of stay I can continue working and only get stamped whenever I am planing for an out of US trip.

I have to go to India in a period of 1 month.

Thanks,

Priyank

[Nitesh15]

Hi,

Upon forwarding the DOL complaint documents to my Attorney, she has suggested not to include the entire copy of the DOL complaint (with forms, paystubs, email exchanges, etc) but to include a letter explaining these facts with my contact information at the end..for the USCIS if they request for proofs.

Heres a copy of the letter, please let me know if this makes sense

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------

January 24, 2012

Re: My Employment Relationship with my Previous H-1B Employer, "old company"

Dear Sir or Madam,

It is very important to me that I maintain my status while employed in the U.S. in H-1B status and I have always made every attempt to do so. I thought that because I was working for the employer who sponsored my H-1B work authorization ("old company") I was adequately complying with the H-1B work authorization. Now that I realize this may not be the case, I am upset that my employer’s failure to pay me adequately and provide documentary proof required maintaining status may hurt my chances of working with my new employer.

I was an employee at "old company" from October 01, 2007 until August 21, 2011. At this time, I moved to my current employer, "new company", after they filed an H-1B petition on my behalf. The main reason I left "old company" to join "new company" was that I felt "old company" was not compensating me adequately or fairly for my services. Specifically, "old company" was providing me payment for my services on an ad hoc basis at best and these payments often required extensive work and communication with my employer on my part.

During the last year of my employment at "old company" I would have to continuously ask the owner, 'abc' for payment each month. I would have to send countless emails and make many phone calls in attempt to receive payment. Further, rather than receiving the payments I expected each month I found that the amounts would vary from month-to-month and were not consistent. As a salaried employee of "old company" this surprised me.

In addition to the sporadic payments I experienced, I have also found inconsistencies in my payments from "old company". Specifically I have found that the amounts that "old company" paid me and the amounts listed on my various paystubs differ. Further, both of these amounts differ from the amount stated on my W-2 statement I recently received from "old company".

Based on the lack of payment for the services I provided, the sporadic payments I experienced and the differences in the documentation I have received from "old company", I decided it was in my best interest to seek employment with a different company. As such, I joined "New Company" as an employee in August 2011. Although I made every attempt to work with my employer regarding my compensation, I felt he was unable or unwilling to work with me further.

Because my former employer would not pay me adequately, fairly or consistently I made the tough decision to change employers. As an employee who is H-1B work authorized I will make every effort to ensure the work I do is consistent with the regulations. As I said earlier, it saddens me that even though I made every attempt to do what I was supposed to do (and thought that I was complying with the regulations) my employer’s failure to adequately pay me for my services may hurt my ability to work for my new employer. As an employee of "new company" I intend to follow these regulations for the duration of my employment with them.

Should you have further questions or require additional information feel free to contact me through phone: XXX-XXX-XXXX or email: myname@email.com.

Sincerely,

My Name

[Chitown01]

If your h1 gets approved thru consular processing means your exytension of stay was deniend and you will be in the contry ILEGALLY starting the date of denial. You will have to leave the country get stamped come in with new i-94 n then only u can dtart working.

If your previous h1 visa on passport is valid u can go to boder post and re enter with new i-94 n start working.

[psjaya]

HI Priyank ,

Hope all is well. I am also in same situation. I do not have pay stubs for month of January and I applied for my transfer on Feb 10 and started working with receipt number, my case went out in regular processing. I am planning to file a compliant with DOL about my previous employer, though this will not get me back into status, but would justify my stay without pay in USA.

Please let me know if you have any updates on your case.

Thanks

Sree

[Nitesh15]

Hi psjaya,

I went ahead and sent my response for the RFE, and with the letter explaining the issues with my previous employer along with paystubs, W2s, I got an approval on my case. I went for premium processing after responding to RFE and got response within 3 days. I suggest you need to clearly tell your previous employer and get the paystubs from him if possible, if not, you will have to talk to your current lawyer about possible options like including a letter to explain missing documents if any and also a DOL complaint receipt as proof. Although we were thinking of the DOL complaint to include in the RFE response we did not do that. We included a letter explaining in very detail the issues I faced with my current employer. You can include samples of email communication as proof of requesting the paystubs from your employer as proof in your application also.. You need to explain and go with what your lawyer says

[psjaya]

Hi Priyank,

Glad to hear that you got your approval. Thank you very much for the info. I will talk to my previous employer to give me the pay stubs if not I will try to work closely with my attorney and try to resolve this issue.

[asha2020]

Hi Nitesh,

How many days it took for DOL to issue a letter after filing complaint?

Glad that your H1b transfer is successful.