H1 B transfers

[mesudhir]

I am working for X company which holds my H1.

Now I put transfer from Y company, the Y filed my H1 and it got trasferred.

Now my question is : If I want to work with the X company can I? or do I need to go with the Y company only. which H1B is valid. pls help me.

Thanks in advance...

[Chitown01]

You can choose not to join Y altogeather

You have upto 60 days to join new employer, else they will no longer be liable for your h1.

Also, you can continue with X, if their petition is still active.

[mesudhir]

Thanks much..

Mean while If I want to join Z company can I go and do H1 process with Z company. Will it be a problem for H1 processing with USCIS or is it good thing to do H1 transfers in short terms.

[livliv]

You can choose not to join Y altogeather

You have upto 60 days to join new employer, else they will no longer be liable for your h1.

Also, you can continue with X, if their petition is still active.

There is no such 60 day limit. Y can continue to keep the petition as long as it is valid. Although there is an expectation that they revoke the petition if the employee does not join.

The employee can continue with X as long X's petition and corresponding I-94 remains valid.

[Chitown01]

@mesudhir,

Yes, company Z can file for your h1 as well, As long as you have the paystubs proving continous employment and employer is Not Shady Consulting company... there should be no problem...

Here is the information on 30/60 day rule on Murthy.com April 17 2009 News Letter : http://www.murthy.com/news/n_emrpay.html

When Must an Employer Start Paying an H1B Worker?

Posted Apr 17, 2009

©MurthyDotCom

We at the Murthy Law Firm recently have been producing articles intended to assist H1B petitioning employers in understanding and complying with complex U.S. Department of Labor (DOL) regulations. The timing of an employer’s obligation to pay H1B workers is another important topic in this area; in particular, a DOL regulation commonly referred to as the 30/60-day rule. Many of the regulations that apply to employers of H1B workers pertain to the labor condition application (LCA) that must be obtained from the DOL to process an H1B petition.

©MurthyDotCom

DOL Regulations Define Start Date for Wage Obligation

©MurthyDotCom

The DOL has a regulation that states that an employer who files an H1B petition must begin to pay the sponsored worker the required LCA wage when the worker enters into employment. The DOL defines this as when the worker makes himself or herself available for employment or when the worker comes under the control of the employer. Thus, an H1B employee meets this requirement and the wage obligation begins, in many situations, when the worker is not engaging in productive employment. This can include common situations, such as when the employee is available to start, but is waiting for an end-client assignment, is engaged in any type of training (whether in-house or from the employee's residence), is attending orientation sessions, and/or is interviewing with end-clients or customers for placement. Thus, employers that do not pay their H1B workers who have made themselves available or are in the employer's control, as explained above, can be subject to substantial back-wage assessments.

©MurthyDotCom

DOL 30/60-Day Rule

©MurthyDotCom

If the H1B worker does not enter into employment, as defined above, and is present in the United States, then the DOL's 30/60-day rule will apply. The relevant DOL regulation states that if the H1B worker does not enter into employment, the H1B employee must be put on the employer's payroll and be paid the full required LCA wage on the 30th day after the employee entered the U.S. in H1B status. If the H1B worker was already in the U.S. when the H1B petition was approved, s/he must be paid the full required LCA wage, at the latest, by the 60th day after the date when the worker became eligible to work for the employer. The worker is considered eligible for work on the start date listed on the approved H1B petition or the date that the H1B petition is approved, whichever is later. Thus, the wage obligation must begin, at the latest, 60 days after the start date of the approved H1B petition.

©MurthyDotCom

Example 1 Company A files an H1B petition on April 1, 2009. The requested start date for employment is October 1, 2009. If the H1B petition is approved on July 1, 2009, the eligible to work date is October 1, 2009. This is because the H1B petition requested a start date of October 1, and no wage obligations are triggered before that date, even if the H1B petition is approved.

©MurthyDotCom

Example 2 Company A files an H1B petition on April 1, 2009. The requested start date for employment is October 1, 2009. If the H1B petition is not approved until November 1, 2009, the eligible to work date is November 1, 2009. This is because, as of the requested start date, the petition was not yet approved.

©MurthyDotCom

H1B Withdrawals May Be Needed

©MurthyDotCom

If an H1B worker is in the United States, the H1B-sponsoring employer’s LCA wage obligations will begin no later than the 60th day after the start date on the approved H1B petition. Most employers cannot afford to pay workers who are not working for them and producing some type of revenue or benefit. Thus, in order to prevent or stop the back wage obligation for such workers, it is necessary to terminate the employee and send a withdrawal notification to the U.S. Citizenship and Immigration Services (USCIS). The DOL considers the H1B worker’s wages to be a responsibility of the employer until the date that the USCIS receives a written request to withdraw the relevant H1B petition. The revocation of H1B petitions was covered in our March 20, 2009 NewsBrief, entitled Solutions to Help Employers with H1B Compliance, available on MurthyDotCom.

©MurthyDotCom

Enforcement of the 30/60-Day Rule

©MurthyDotCom

The DOL is currently enforcing this 30/60-day rule against employers of H1B workers in two ways. First, the DOL is seeking back wages for the time between when an employee enters the U.S. or becomes eligible to work and the time when the H1B employee is first added to the employer's payroll and paid the full LCA wage. Any reduced salary or wage during this time is considered a violation of DOL regulations and can lead to an assessment of back wages and possible fines. The DOL is also seeking back wages covering the period from when an H1B worker last was paid to when USCIS receives a written withdrawal request for the H1B petition. If the employer waits several months to send the withdrawal request, and does not have other clear proof of the termination of employment, there can be an assessment of back wages.

[Chitown01]

So basically, if you dont join employer Y in 60 days, they CANNOT be hold accountable for H1 i.e. pay you

So you should join them within 60 days

That is my interpretation

[livliv]

So basically, if you dont join employer Y in 60 days, they CANNOT be hold accountable for H1 i.e. pay you

So you should join them within 60 days

That is my interpretation

Actually it is the opposite. If you don't join Y in 60 days and if Y does not withdraw their petition, Y has to pay you.

The quoted article only speaks about employer's responsibility to pay the employee or withdraw petition. The employee does not have any such 60/30 day limit. Employee can join anytime as long petition remains valid and in fact even claim backwages for period not worked.

All this is DOL regulation which determines wages and such. USCIS does still require that the employee must work for any one petitioner to maintain H1B status only while the corresponding employer's petition is valid.