Does Payroll gap(unpaid sick time) affect GC process?

[newtogc]

Hi Folks

Thanks for looking at my post.Say an employer pays  on  an hourly basis and doesn't pay for sick time. If an employee is sick for 1-2 months without a paycheck during that time - will this 2 months be a problem when at any stage of the PERM process ?

Thanks for your time.

Raj

[rahul412]

Hi Folks

Thanks for looking at my post.Say an employer pays  on  an hourly basis and doesn't pay for sick time. If an employee is sick for 1-2 months without a paycheck during that time - will this 2 months be a problem when at any stage of the PERM process ?

Thanks for your time.

Raj

If you are on H1 then you need to get paid every month, on H1 there is no hourly salary. Not getting paid will get you into trouble.

[ashuneel]

If you are sick for that long then you need to apply for SDI or other medical benefits. You cannot just stay at home and get no pay. How will you prove that you are really sick and not just sitting on bench without pay.

[newtogc]

If you are sick for that long then you need to apply for SDI or other medical benefits. You cannot just stay at home and get no pay. How will you prove that you are really sick and not just sitting on bench without pay.

Most staffing firms don't provide Short Term disability benefits. Only full-time employees in companies provide such benefits.

[JoeF]

If you are on H1 then you need to get paid every month, on H1 there is no hourly salary. Not getting paid will get you into trouble.

 

Actually, hourly salary is possible on H1. But, the person would have to get paid for 40 hours/week, even if the person works less. And the states have overtime rules for hourly workers, usually 1.5 times the normal hourly pay.

In some states, e.g. CA, overtime pay is due if the person works more than 8 hours per day, even if the person works less the next day.

So, hourly pay for people on H1 doesn't make sense for the employer. It costs the employer more than a monthly salary.

As was mentioned by ashuneel, the OP probably needed to apply for SDI.

Also, the OP needs to have a doctor's letter. Simply staying home is never a solution.

[JoeF]

BTW, the hourly wage requirements are defined in 20 CFR 655.731 (highlighted by me):

"(7) Wage obligation(s) for H-1B nonimmigrant in nonproductive status—(i) Circumstances where wages must be paid. If the H-1B nonimmigrant is not performing work and is in a nonproductive status due to a decision by the employer (e.g., because of lack of assigned work), lack of a permit or license, or any other reason except as specified in paragraph ©(7)(ii) of this section, the employer is required to pay the salaried employee the full pro-rata amount due, or to pay the hourly-wage employee for a full-time week (40 hours or such other number of hours as the employer can demonstrate to be full-time employment for hourly employees, or the full amount of the weekly salary for salaried employees) at the required wage for the occupation listed on the LCA."

[JoeF]

And the rules for payment in case of accident, illness, etc. are also in 20 CFR 655.731:

"(ii) Circumstances where wages need not be paid. If an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.)."

[newtogc]

Actually, hourly salary is possible on H1. But, the person would have to get paid for 40 hours/week, even if the person works less. And the states have overtime rules for hourly workers, usually 1.5 times the normal hourly pay.

In some states, e.g. CA, overtime pay is due if the person works more than 8 hours per day, even if the person works less the next day.

So, hourly pay for people on H1 doesn't make sense for the employer. It costs the employer more than a monthly salary.

As was mentioned by ashuneel, the OP probably needed to apply for SDI.

Also, the OP needs to have a doctor's letter. Simply staying home is never a solution.

As per the employer a  tier 3 employer need not have to offer Short /Long term  disability benefits .The employee just accrues 1 hr of sicktime for every 30 hrs worked. So I'm still not sure if the sick employee would go out of status 

[JoeF]

Most staffing firms don't provide Short Term disability benefits. Only full-time employees in companies provide such benefits.

 

H1 for "staffing firms" is not possible.

The people in consulting companies ARE full-time employees of the consulting company.

[JoeF]

As per the employer a  tier 3 employer need not have to offer Short /Long term  disability benefits .The employee just accrues 1 hr of sicktime for every 30 hrs worked. So I'm still not sure if the sick employee would go out of status 

 

What is a "tier 3 employer"???

There is NO such thing. An employer is an employer is an employer.

On H1, you are employed by a company. You are a full-time employee, even if the company is a consulting company.

[newtogc]

Actually, hourly salary is possible on H1. But, the person would have to get paid for 40 hours/week, even if the person works less. And the states have overtime rules for hourly workers, usually 1.5 times the normal hourly pay.

In some states, e.g. CA, overtime pay is due if the person works more than 8 hours per day, even if the person works less the next day.

So, hourly pay for people on H1 doesn't make sense for the employer. It costs the employer more than a monthly salary.

As was mentioned by ashuneel, the OP probably needed to apply for SDI.

Also, the OP needs to have a doctor's letter. Simply staying home is never a solution.

Hi Joe & others

That actually confuses me. I get  paid only for the number of hours I work during the week .The problem is the employer does not offer short term disability benefits so I won't get paid for the sick time . In any case, I'm interviewing for my next project  at the same time. How much grace time do I have before I can find my next assignment  (Last paycheck was on April 22nd)?

Thanks

[rahul412]

Your employer has to find a project for you and you need to get paid every month, there is no grace period here.

[JoeF]

Hi Joe & others

That actually confuses me. I get  paid only for the number of hours I work during the week .The problem is the employer does not offer short term disability benefits so I won't get paid for the sick time . In any case, I'm interviewing for my next project  at the same time. How much grace time do I have before I can find my next assignment  (Last paycheck was on April 22nd)?

Thanks

 

If you get paid hourly, you need to get paid for 40 hours/week, even if you work less.

And there is no grace time. You ALWAYS need to get paid on H1, even if you don't have an assignment. You still need to get paid for 40 hours/week.

These are the rules for H1, and the employer knows it.

If the employer doesn't want to pay you according to the rules, file a complaint with DOL on form WH4. The DOL will make the employer pay you.

And find a better employer, one who follows the law.

[cap-gap]

you started with asking about sick time off and now talking about next project..

 

so as somebody suggested, were you just trying to fake sick time for bench period??

[newtogc]

you started with asking about sick time off and now talking about next project..

 

so as somebody suggested, were you just trying to fake sick time for bench period??

No. Health issues are affecting my work significantly.

[JoeF]

No. Health issues are affecting my work significantly.

 

You still need to get paid even on bench without a project.