HB: WH4 can be handled whe

[moresolve]

Background:

 

I am in USA since more than 6 months on H1B Visa. So far I have got no project and no salary from employer. Now I need to go back india for some urgent personal things.

 

Questions..

 

 1. Is it possible or allowed to handle WH4 process or complaint for non payment of my salary while I am out of USA??  

 

 2. Usually How much time DOL takes to resolve WH4 cases ? 

 

 

Thanks

[jairichi]

For the past 6 months you were not on H1B you are actually out of status. You need to file a complaint against employer with DOL. This will get your salary dues and move to a new employer.

1. File it now while you are in US.

2. It is on case by case basis.

[JoeF]

You can certainly file a WH4 while abroad.

As far as the time frame is concerned, that depends on where it is filed.

For example, there are disproportionally many shady companies in New Jersey, so the DOL there handles more WH4 complaints than in other states, so it takes longer there.

[moresolve]

For the past 6 months you were not on H1B you are actually out of status. You need to file a complaint against employer with DOL. This will get your salary dues and move to a new employer.

1. File it now while you are in US.

2. It is on case by case basis.

To correct, I am on H1B. So I am not out of status. Only concern is I have not received payment/salary.

 

If I file Wh4 while in USA and then i go to my home country for my urgent work. Is that allowed as per law? Or I need to stay in USA till WH4 case result is concluded by DOL ?.... As I need to go at my home country on urgent basis.

[moresolve]

You can certainly file a WH4 while abroad.

As far as the time frame is concerned, that depends on where it is filed.

For example, there are disproportionally many shady companies in New Jersey, so the DOL there handles more WH4 complaints than in other states, so it takes longer there.

Thanks for helpful reply.

 

When you say I can file WH4 while I am in my Home Country, does that mean I can initiate WH4 from my home country instead of USA and do not need to visit USA for my WH4 case hearings or for any legal requirement throughout the process?  ... I mean is that possible?

[jairichi]

To correct, I am on H1B. So I am not out of status. Only concern is I have not received payment/salary.

 

If I file Wh4 while in USA and then i go to my home country for my urgent work. Is that allowed as per law? Or I need to stay in USA till WH4 case result is concluded by DOL ?.... As I need to go at my home country on urgent basis.

To be correct you were out of status and not on H1B as you were not paid salary.

You can go to home country. Your complaint will be processed.

[moresolve]

To be correct you were out of status and not on H1B as you were not paid salary.

You can go to home country. Your complaint will be processed.

If its really true then Please tell me... Hypothetically If in next week I get confirm project then I will join the project and get the salary as per LCA , paid by my employer, then I will regain my H1B status ? Is that correct? 

 

And When you say I can process complaint from home country... in such case I have one more query, If my employer terminates me once I reach home country, in this scenario am I eligible to process complaint against employer from home country?

[jairichi]

If its really true then Please tell me... Hypothetically If in next week I get confirm project then I will join the project and get the salary as per LCA , paid by my employer, then I will regain my H1B status ? Is that correct? 

 

And When you say I can process complaint from home country... in such case I have one more query, If my employer terminates me once I reach home country, in this scenario am I eligible to process complaint against employer from home country?

That is the reality. You have no option other than to file a complaint against employer.

Yes, your complaint will still be processed.

[moresolve]

Thanks for helpful reply.

 

When you say I can file WH4 while I am in my Home Country, does that mean I can initiate WH4 from my home country instead of USA and do not need to visit USA for my WH4 case hearings or for any legal requirement throughout the process?  ... I mean is that possible?

 

Awaiting for response ..

[moresolve]

That is the reality. You have no option other than to file a complaint against employer.

Yes, your complaint will still be processed.

Ok Thanks.

 

For information, Can you please tell me what are the criteria for getting out of H1B status?

 

Rule is of unpaid for 180 days or 60 days ? And from which point these days are calculated? From the date of entry in USA or from the date I received SSN ?

[jairichi]

Rule is you need to be paid from the day you joined employer. If not then you are out of status. File a complaint against employer with DOL.

[JoeF]

On H1, you have to get paid ALL THE TIME.

You have to get your salary at regular intervals, no less than monthly.

[GhanshyamIndia]

I am also in same boat!

I am in USA since last 2 months on H1B Visa. I am not getting salary or pay stub from my employer.they made fake resume.And forced me to well prepare for fake project.

Finally, I decided to go back my home country.

my  question is:

 1. Is it possible or allowed to handle WH4 process or complaint From my home country?  

Thanks

[JoeF]

I am also in same boat!

I am in USA since last 2 months on H1B Visa. I am not getting salary or pay stub from my employer.they made fake resume.And forced me to well prepare for fake project.

Finally, I decided to go back my home country.

my  question is:

 1. Is it possible or allowed to handle WH4 process or complaint From my home country?  

Thanks

 

Yes it is. File a WH4 ASAP.

[jairichi]

I am also in same boat!

I am in USA since last 2 months on H1B Visa. I am not getting salary or pay stub from my employer.they made fake resume.And forced me to well prepare for fake project.

Finally, I decided to go back my home country.

my question is:

1. Is it possible or allowed to handle WH4 process or complaint From my home country?

Thanks

Yes. File a complaint against employer with DOL.

[moresolve]

Rule is you need to be paid from the day you joined employer. If not then you are out of status. File a complaint against employer with DOL.

 

As you said here from the date employee joined... he/she should get paid. So in this regard I have a query as below:

 

Question 1:

If I file complaint against employer for non payment of wages through DOL, then in the investigation process of DOL what is preceding -  Terms & clauses mentioned in Employment Agreement & Offer Letter (Between me and employer) OR rules of Immigration law?

 

Note: Asking this question because my Employment Agreement & Offer Letter has many ambiguous clauses like employment start date is not clear and also I was on bench (non productive time) and was searching for end client / project for corp to corp employment type. Hence from employment agreement perspective my case is weak, but as I think employer has violated immigration rules... then that may get precedence and that will benefit me. 

 

If because of my Employment Agreement & Offer Letter it gets proved that I have violated the rules then that may give me big hit.... that is my worry. So on this information I can be in a better position to decide if DOL complaint is really going to benefit me or not?

 

Question 2:

When I arrived in USA, I asked to employer in written if we need to complete I-9 form formality? ... I got reply in written that, first I need to get confirm project in hand , then only we can submit I-9 form. I think here my employer has violated the rules as I am on W2 of my employer. Can I use this for my benefit in DOL investigation as a proof of my joining to the employment ?

[jairichi]

As you said here from the date employee joined... he/she should get paid. So in this regard I have a query as below:

 

Question 1:

If I file complaint against employer for non payment of wages through DOL, then in the investigation process of DOL what is preceding -  Terms & clauses mentioned in Employment Agreement & Offer Letter (Between me and employer) OR rules of Immigration law?

 

Note: Asking this question because my Employment Agreement & Offer Letter has many ambiguous clauses like employment start date is not clear and also I was on bench (non productive time) and was searching for end client / project for corp to corp employment type. Hence from employment agreement perspective my case is weak, but as I think employer has violated immigration rules... then that may get precedence and that will benefit me. 

 

If because of my Employment Agreement & Offer Letter it gets proved that I have violated the rules then that may give me big hit.... that is my worry. So on this information I can be in a better position to decide if DOL complaint is really going to benefit me or not?

 

Question 2:

When I arrived in USA, I asked to employer in written if we need to complete I-9 form formality? ... I got reply in written that, first I need to get confirm project in hand , then only we can submit I-9 form. I think here my employer has violated the rules as I am on W2 of my employer. Can I use this for my benefit in DOL investigation as a proof of my joining to the employment ?

1. US immigration law.

2. Use all documents to support your case.

[moresolve]

1. US immigration law.

2. Use all documents to support your case.

Fact 1:

 

When I arrived in USA I did not report to employer office. When I asked employer about this before arriving to USA on phone, my employer  told to stay at relatives place on own cost. We assumed that sooner or later I will get some project confirmation, in actual it did not happen and I was on non productive time throughout my stay in USA. 

(Also all expenses are incurred by me like H1B Petition, India to USA travel, Visa stamping in home country, living cost since I arrived in USA).

 

Question 1

 

If because of above fact I can not prove that I have entered in the employment with my employer then how DOL will handle this after I file a complaint? Will it be proved that , I have violated Immigration rules and hence serious action (Fine or imprisonment or deportation) needs to be taken against me... Is that impact I can expect?

 

 

Fact 2:

 

After arriving in USA at different location (other than employer address mentioned in LCA) ... I asked to employer in written if we need to complete I-9 form formality? ... I got reply in written that, first I need to get confirm project in hand , then only we can submit I-9 form. I think here my employer has violated the rules as I am on W2 of my employer. Also ... I have many communications with my employer staff throughout this period for searching the project.  Which shows that my employer was aware about my physical presence in USA.

 

Question 2:

 

Considering Fact 1 and Fact 2 btoth....Can I use Fact 2 supporting documents for my benefit in DOL investigation as a proof of my joining to the employment ? ..........  So that I may be able to prove that I have entered into employment with my H1B sponsoring company / employer .

 

 

 

Question 3:

 

Overall if in my case I have very serious impact in DOL investigation then what is suggestible to me? Shall I really go for WH4 complaint or not?

 

 

Question 4:

 

If I go back to home country without any complaint against employer, then in future may be after few years do I have any major challenges to enter in USA for job?  (Note: I will have no pay stubs or W2 for year 2015)

 

 

 

I need to take appropriate step considering risk factors involved. Please suggest on above 4 questions. Its really urgent.

 

 

Thanks

[JoeF]

Fact 1:

 

When I arrived in USA I did not report to employer office

 

That doesn't matter. You made yourself available for work.

And you discussed the form I-9 with the employer. That means you reported to work.

The employer had to pay you.

And the employer had to pay for the H1, not you.

Not filing a WH4 can result in having problems getting another H1 later.

File a WH4. It helps you.

[jairichi]

Fact 1:

 

When I arrived in USA I did not report to employer office. When I asked employer about this before arriving to USA on phone, my employer  told to stay at relatives place on own cost. We assumed that sooner or later I will get some project confirmation, in actual it did not happen and I was on non productive time throughout my stay in USA. 

(Also all expenses are incurred by me like H1B Petition, India to USA travel, Visa stamping in home country, living cost since I arrived in USA).

 

Question 1

 

If because of above fact I can not prove that I have entered in the employment with my employer then how DOL will handle this after I file a complaint? Will it be proved that , I have violated Immigration rules and hence serious action (Fine or imprisonment or deportation) needs to be taken against me... Is that impact I can expect?

 

 

Fact 2:

 

After arriving in USA at different location (other than employer address mentioned in LCA) ... I asked to employer in written if we need to complete I-9 form formality? ... I got reply in written that, first I need to get confirm project in hand , then only we can submit I-9 form. I think here my employer has violated the rules as I am on W2 of my employer. Also ... I have many communications with my employer staff throughout this period for searching the project.  Which shows that my employer was aware about my physical presence in USA.

 

Question 2:

 

Considering Fact 1 and Fact 2 btoth....Can I use Fact 2 supporting documents for my benefit in DOL investigation as a proof of my joining to the employment ? ..........  So that I may be able to prove that I have entered into employment with my H1B sponsoring company / employer .

 

 

 

Question 3:

 

Overall if in my case I have very serious impact in DOL investigation then what is suggestible to me? Shall I really go for WH4 complaint or not?

 

 

Question 4:

 

If I go back to home country without any complaint against employer, then in future may be after few years do I have any major challenges to enter in USA for job?  (Note: I will have no pay stubs or W2 for year 2015)

 

 

 

I need to take appropriate step considering risk factors involved. Please suggest on above 4 questions. Its really urgent.

 

 

Thanks

Your fact 2 will take care of fact 1.

[moresolve]

That doesn't matter. You made yourself available for work.

And you discussed the form I-9 with the employer. That means you reported to work.

The employer had to pay you.

And the employer had to pay for the H1, not you.

Not filing a WH4 can result in having problems getting another H1 later.

File a WH4. It helps you.

Thanks.

 

I would like to further ask on this:

 

Below mentioned fact sheets I found in "Wages & Hour Division (WHD)" of DOL. Which clarify Employer's Obligation towards employee. Fact sheet 62I talks about "When does the employer's obligation to pay for nonproductive time to employee start?" It says that ...... "The H-1B worker “enters into employment” with the sponsoring employer, which occurs when the worker first makes him/herself available for work or otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam;"

 

Reference:

Fact Sheet #62I: Must an H-1B employer pay for nonproductive time? 

Link: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62I.pdf

 

Apart from these other fact sheets "62J" and "62K" talks about "Place of Employment" & "What is the short-term placement option" respectively. 

 

Reference:

Fact Sheet #62J: What does “place of employment” mean?

Link: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62J.htm

 

Fact Sheet #62K: What is the short-term placement option?

Link: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62K.htm

 

My Question is:

 

1.  Does Fact 2 of my case (My written communication about I-9 Form with employer and their reply ) will override these fact sheets and I will get all my employee rights ?

 

2. If I file Complaint with DOL then do I  as per these above mentioned fact sheets fall into rules violated category in DOL investigation ?

 

3. If it is proved that I have violated Immigration and employment rules then what will be impact and actions I can expect from DOL ?

 

 

Thanks 

[moresolve]

Your fact 2 will take care of fact 1.

Thanks.

 

I would like to further ask on this:

 

Below mentioned fact sheets I found in "Wages & Hour Division (WHD)" of DOL. Which clarify Employer's Obligation towards employee. Fact sheet 62I talks about "When does the employer's obligation to pay for nonproductive time to employee start?" It says that ...... "The H-1B worker “enters into employment” with the sponsoring employer, which occurs when the worker first makes him/herself available for work or otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam;"

 

Reference:

Fact Sheet #62I: Must an H-1B employer pay for nonproductive time? 

Link: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62I.pdf

 

Apart from these other fact sheets "62J" and "62K" talks about "Place of Employment" & "What is the short-term placement option" respectively. 

 

Reference:

Fact Sheet #62J: What does “place of employment” mean?

Link: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62J.htm

 

Fact Sheet #62K: What is the short-term placement option?

Link: http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62K.htm

 

My Question is: 

 

1.  Does Fact 2 of my case (My written communication about I-9 Form with employer and their reply ) will override these fact sheets and I will get all my employee rights ?

 

2. If I file Complaint with DOL then do I  as per these above mentioned fact sheets fall into rules violated category in DOL investigation ?

 

3. If it is proved that I have violated Immigration and employment rules then what will be impact and actions I can expect from DOL ?

 

 

Thanks 

[JoeF]

The place of employment is your employer's address.

Short-term placement means if a person working for a consulting company is at a client site for a short time. In such a case, a new LCA doesn't have to be filed.