Employee threatening to file complaint with USCIS--need advice

[honebeequery]

I am currently serving notice period with my current employer. He doesn't agree for the resignation and the discussion with my previous employer didn't go well. He was saying that I cannot quit by resignation (which I submitted last monday 6th of Jan) and I have the one between the two options to choose.

 

I've received the I-797 approval with my next employer - along with extended I-94s for me and my family.

 

 

1) Stay with him for another 6 months - to which I said I cannot agree on, as I said I can serve the notice of 10 working days, from the date of resignation, which is this Friday (January 17th). The signed contractual agreement doesn't specify any commitment period, except the notice of 10 working days. Can I still go ahead and continue to serve the notice period and move to the next employer next monday?

 

2) Stay with him for 1 more month and then, he can get me a one way ticket to India, and then I can come with the employer I wanted to.

 

Otherwise, he's threatening to file a complaint to USCIS on me and get me deported. Can he really do that? Or, is he saying this just to threaten me?

 

Here below are few things that happened.

1) My H1B got approved after two RFEs and got the visa stamped at the end of April'2013.

2) I've entered the US on the 4th of July' 2013 and since then I was on bench till August 5th. My employer didn't pay me for this period.

 

3) The first pay I received was on October 1st(3 months later, I came to the US) I joined and that was for the month of August. Currently, he's paying salary with a month's delay. The most recent pay that I received is for the hours I worked for, in November. - My paychecks reflect the same.

 

4) My current H1B with Horizon Systems Inc, will expire on 15th Jan 2014 and I'm not aware of any extensions applied by him. Does that still entitle my current employer to work against me?

 

5) When I enquired with him reg. the medical insurance, he told me to wait till Jan'14 to get a medical insurance for me and my family. So, I had to choose a different health care plan at my own expense, other than that should have been offered by my employer. After that, he took a confirmation email from me that I don't require a health insurance.

 

6) I've borne all the cost of my H1B(~4300 USD), my travel from India(~1000USD), my stay here in the US,while on bench, and wasn't getting any support on these fronts from my employer.

 

 

[jairichi]

 

I am currently serving notice period with my current employer. He doesn't agree for the resignation and the discussion with my previous employer didn't go well. He was saying that I cannot quit by resignation (which I submitted last monday 6th of Jan) and I have the one between the two options to choose.

 

I've received the I-797 approval with my next employer - along with extended I-94s for me and my family.

 

 

1) Stay with him for another 6 months - to which I said I cannot agree on, as I said I can serve the notice of 10 working days, from the date of resignation, which is this Friday (January 17th). The signed contractual agreement doesn't specify any commitment period, except the notice of 10 working days. Can I still go ahead and continue to serve the notice period and move to the next employer next monday?

 

2) Stay with him for 1 more month and then, he can get me a one way ticket to India, and then I can come with the employer I wanted to.

 

Otherwise, he's threatening to file a complaint to USCIS on me and get me deported. Can he really do that? Or, is he saying this just to threaten me?

 

Here below are few things that happened.

1) My H1B got approved after two RFEs and got the visa stamped at the end of April'2013.

2) I've entered the US on the 4th of July' 2013 and since then I was on bench till August 5th. My employer didn't pay me for this period.

 

3) The first pay I received was on October 1st(3 months later, I came to the US) I joined and that was for the month of August. Currently, he's paying salary with a month's delay. The most recent pay that I received is for the hours I worked for, in November. - My paychecks reflect the same.

 

4) My current H1B with Horizon Systems Inc, will expire on 15th Jan 2014 and I'm not aware of any extensions applied by him. Does that still entitle my current employer to work against me?

 

5) When I enquired with him reg. the medical insurance, he told me to wait till Jan'14 to get a medical insurance for me and my family. So, I had to choose a different health care plan at my own expense, other than that should have been offered by my employer. After that, he took a confirmation email from me that I don't require a health insurance.

 

6) I've borne all the cost of my H1B(~4300 USD), my travel from India(~1000USD), my stay here in the US,while on bench, and wasn't getting any support on these fronts from my employer.

 

First of all your employer committed immigration fraud by taking money from you for processing H1B and not paying you on bench which is considered out of status. You need to talk to a good attorney to complain against this employer with DOL and USCIS. Do not think twice or hesitate to take this course of action. This would help you get your unpaid wages for that 1 month on bench. As this being unpaid on bench might some time later comeback to bite you later like GC processing. Also, since you are not parting in good terms employer might also think of not paying the wages he has to pay you till 17th Jan 2014. Filing a complaint would dissuade him from doing so.

 

As you have served your notice period to him you have nothing to worry. Only he has to worry now because of the complaint you are going to make with relevant authorities.

[JoeF]

File a complaint with DOL on form WH4.

The employee paying for the H1 is illegal. Not getting paid on bench is illegal. The DOL will make the employer pay you for the bench time, and get your money for the H1 filing back.

You are lucky that you got an H1 transfer. But without a WH4, you will likely have problems later on.

Because the old employer breached the contract by not paying you, you wouldn't even have to serve the 2 week notice period.

And the employer can't do anything, anyway. He has to inform USCIS that you no longer work for him. That's by law, but that's all he can (and has to) do.

[honebeequery]

First of all your employer committed immigration fraud by taking money from you for processing H1B and not paying you on bench which is considered out of status. You need to talk to a good attorney to complain against this employer with DOL and USCIS. Do not think twice or hesitate to take this course of action. This would help you get your unpaid wages for that 1 month on bench. As this being unpaid on bench might some time later comeback to bite you later like GC processing. Also, since you are not parting in good terms employer might also think of not paying the wages he has to pay you till 17th Jan 2014. Filing a complaint would dissuade him from doing so.

 

As you have served your notice period to him you have nothing to worry. Only he has to worry now because of the complaint you are going to make with relevant authorities.

Thank you for your reply jairichi.

 

I've signed a contract with my employer - which doesn't quote any text about "minimum period to stay with him". - But, in general, if an employee's H1B expires before the contract period, does the contract still stay valid? Or, does the contract stay valid irrespective of the status? That's the 4th point I was pointing to, in my previous post.

 

I currently don't have a direct link to him to prove that I've paid him for my visa - I've deposited the amount in his father-in-law's savings bank account. And he managed it very cleverly, without any written proof.

 

I'm planning to send out another email on the last working day - this friday - and asking him to " clear all the arrears along with the W2 form. If not, I'll approach DOL".

 

Does that sound reasonable? And, can any of these affect my prospects of applying for a GC sooner?

[rahul412]

 

6) I've borne all the cost of my H1B(~4300 USD), my travel from India(~1000USD), my stay here in the US,while on bench, and wasn't getting any support on these fronts from my employer.

 

If that's true then you have a upper hand.

File a complaint against your FRAUD employer and make sure he gets deported.

[catx]

You need to do the following things in this order ...

1. Immediately file complaints against your employer with the Department of Laobr (DoL) and USCIS as posted by JoeF and others.  (Keep all records of your communications with your employer past, present, and future.)
2. Upon official acknowledgment of your complaints from the aforementioned agencies, when your employer threatens you tell him that he is fraudulent, committing multiple violations of immigration laws, regulations, and rules -- and you have filed complaints against him with the DoL and USCIS (ref. point 1.).
3. To paraphrase Johnny Paycheck ... tell your employer "to take the job and shove it".

[jairichi]

Thank you for your reply jairichi.

 

I've signed a contract with my employer - which doesn't quote any text about "minimum period to stay with him". - But, in general, if an employee's H1B expires before the contract period, does the contract still stay valid? Or, does the contract stay valid irrespective of the status? That's the 4th point I was pointing to, in my previous post.

 

I currently don't have a direct link to him to prove that I've paid him for my visa - I've deposited the amount in his father-in-law's savings bank account. And he managed it very cleverly, without any written proof.

 

I'm planning to send out another email on the last working day - this friday - and asking him to " clear all the arrears along with the W2 form. If not, I'll approach DOL".

 

Does that sound reasonable? And, can any of these affect my prospects of applying for a GC sooner?

In general an employee has the right to leave an employer anytime by serving the notice period (if mentioned in contract) when there is no other specific clause used in contract.

Any proof to show that you have transferred an equivalent amount of money (for H1B processing) to any account related to your employer (in this case employer father-in-law's account) is good. It would be a simple question from authorities to employer why you had to pay employer's FIL? That would bring out the truth. If you think your employer is cunning investigating authorities are many times intelligent than him.

 

As everyone had mentioned irrespective of whatever the outcome of your negotiation with your employer you need to take the help of a good attorney to file a complaint with DOL. This would not only help you but also other prospective employees being recruited and cheated in future by this employer.

[rahul412]

I currently don't have a direct link to him to prove that I've paid him for my visa - I've deposited the amount in his father-in-law's savings bank account. And he managed it very cleverly, without any written proof.

 

Wow... you didn't realized this while transferring your money??

To be honest, you deserve this.

 

File a complaint, that's the only option you have.

[t75]

You bought a visa and cooperated in the fraud if you paid for more than a very few specific fees.  You need to review the USCIS documents as to your rights and responsibilities.