H1b Transfer Option ? W/o paycheck since 1 month

dream16

By dream16,
in H1B : Portability Issues

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dream16 Advanced Member

dream16

Posted
Posted

Hi Guys,

I am in a very bad situation, my current project is ending on Dec 28,2012 & my current american employer will NOT pay me anything on bench & i will be OUT OF STATUS on Dec 31,2012 or after my leave of absence of max 30 days expire on Jan 30,2013 ?

Only way out they are saying is: take a 30 day leave of absence and after that we will send you a TERMINATION LETTER on Jan 30,2013 and withdraw your h1b if we cannot find you a new project.

Their marketing is NOT GOOD & i am not too hopeful of getting anything (thanks to december market & lack of motivation in marketing).

My current h1b valid till 2014 and i have h1b stamp as well. What my american employer is saying is that don't worry even after 30 days and our termination, if we find you something by March 2013, we can do re-sponsorship via consular processing & you will be back with us and will have to simply get a new I-94 by flying out of US and as u already have a stamp, you can easily do that.

Also,my GC is in progress in EB3 with them (Under AUDIT) and will take 6 months before we can even apply for I-140. They are saying, we will not touch your GC progress and would invite you back to join us once your 1st stage is approved if you leave us now.

My options:

1. Start parallel marketing with DESI CONSULTING & if i get a job through them, using h1b portability i can get my h1b transfer done with them but the problem comes with "CLIENT LETTER". If we apply without it under regular processing, we get a RFE and then reply using client letter and get it approved or WHAT is the other option of replying back if i DO NOT get a client letter to the RFE ? H1b transfer DENY ? What do i do then ?

2. If i get lucky with desi consulting and get h1b transfer approved with them, then simply jump back to american employer once they call me for I-140 stage for Eb3 ?

3. Another rule says that ANYONE on h1b with :OUT OF STATUS CANNOT apply for h1b transfer ? So before my 30 days leave of absence expires on Jan 30,2013, i must get it transferred to Desi ? Otherwise any new desi will have to file a NEW h1b petition for me..

4. I am not going for FT right now because i lack the experience (only 4.5 years) and (no MBA right now) to join the FT positions.

Please advise me GUYs, i am having stressful times, broken family life :(

Thanks

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rahul412 Advanced Member

rahul412

Posted
Posted

Remember, this is not a DESI CONSULTING, here everything happens by the book. So this is the reason, i have asked all these different situation based alternatives

So what? Rules are same for everyone.

If you are on H1 and currently working in US then your sponsor should pay you every month unless and until if there is some valid reason for not getting paid.

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pontevecchio Advanced Member

pontevecchio

Posted
Posted

They are trying to do you a favor however misplaced. Everything does not always happen by the book in the good old US of A. A transfer is ALWAYS a new H1 petition. Start looking intensively for a new employer. Apply for a COS to B2 stating the true reason that you are looking for another sponsor and have the finances WITH PROOF TO STAY FOR SOME TIME LOOKING FOR A SPONSOR AND THAT YOU WILL LEAVE IN 3 MONTHS IF YOU DO NOT GET ANY JOY. That will give you time.

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dream16 Advanced Member

dream16

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Posted

Transfer to B2 is a nightmare. American employer says" do not worry" we will simply re-sponsor your visa back under consular processing and all u have to do is just fly out to any country on the planet and come back to get a new i-94 stapled in PP from POE and end of the story.

My question is regarding the alternatives: Is h1b transfer from Desi Consulting ====>> a BIG NO ? Thank you, now its clear to me that its going to be a new petition. But can i transfer to any Desi consulting since i DO NOT have recent 2 weeks paycheck ?

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JoeF Advanced Member

JoeF

Posted
Posted

JOeF: If you read my post above, Employer has clearly said: WE WILL TERMINATE you once your 30 days LEAVE of absence expires.

If it is a forced LOA, that's already illegal. The OP needs to get paid, unless the LOA is purely on the OP's personal request. Unlikely if the LOA oh-so "conveniently" starts when the project is over...

And of course, employment is at will, so an employer can fire an employee at any time. They still need to pay the person until they do so.

And if they fire a person on H1, they have to pay for the flight of that person back to his or her home country, by law.

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dream16 Advanced Member

dream16

Posted
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Joef: Ofcourse it is a "forced LOA" and call it illegal because this is the purest and the most whitest forms of desi consulting possible in america today.

My only way out seems to be: transfer h1b to desi consulting asap with my last week's paycheck.

Regarding B2: i am not sure as its another nightmare for future GC and stampings + a new different level of b2 rules/visa fiasco.

So i would like to know from experts here that TRANSFERRING To desi consulting is the only way out ? (Full-time is an option but takes minimum of 2 months before offer finalizes and drama)

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JoeF Advanced Member

JoeF

Posted
Posted

Joef: Ofcourse it is a "forced LOA" and call it illegal because this is the purest and the most whitest forms of desi consulting possible in america today.

My only way out seems to be: transfer h1b to desi consulting asap with my last week's paycheck.

No, your only option is to file a complaint with DOL on form WH4 immediately.

You can only transfer your H1 if you have filed a WH4, because you are out of status NOW.

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JoeF Advanced Member

JoeF

Posted
Posted

@joef: I am not a revolutionary & do not plan to be one.

Huh???

It is your RIGHT to get paid. This is a country of laws. Filing a WH4 has nothing to do with being a revolutionary.

Grow up. You have rights!

Can i transfer h1b now to Desi Employer as i am out of status & of-course w/o a job ?

If you don't get paid you ARE out of status.

Without getting paid, you can not transfer anything.

With a WH4 filed, you can transfer.

I'm sure i am not the only one who is facing this for the 1st time & there are workable work-arounds.

The workable workaround is to file a WH4. Get that into your head!

This is the US. You have rights here!

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rahul412 Advanced Member

rahul412

Posted
Posted

@joef: I am not a revolutionary & do not plan to be one. Can i transfer h1b now to Desi Employer as i am out of status & of-course w/o a job ? I'm sure i am not the only one who is facing this for the 1st time & there are workable work-arounds.

I don't understand why are not willing to take action against your employer after explaining you everything in detail?

Moreover if you won't act now,you have to face more scrutiny during your H1 transfer and interview.

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  • 4 weeks later...
JoeF Advanced Member

JoeF

Posted
Posted

Guys, i have taken "vacation" for 30 days as advised by the employer & its not possible to file a WH-4.

Such a forced "vacation" still means that you have to get paid. An employer can not wiggle himself out of the requirement to pay you by forcing you (or even "suggesting") to take a vacation.

File a WH4!

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