A question on H1B Status

[aishuuu143]

Hi All,

Company A: first employer with visa stamping
Company B: Employer with whom the pay stubs were run till January 2017
Company C: current employer

I Would like to confirm few things and have few questions on behalf of one of my friends:

1) I went to India in December 2016 on Company A visa stamping and came back in January 2017 on Company B H1b petition (My H1B petition with Company A was revoked in January 2016)-- Can I do this still?

2) While on Company B, before I had my India travel plans I applied for H1b transfer(COS) to Company C in October 2016 in premium but received the I797A very late in February 2017 (with validity dates from October 2016 till September 2019)as my original notice was missed by the postal services. So not knowing the status of my h1b petition, I didn't want to take risks so I continued working with Company B --- Can I do this legally??

3) After I came back to the USA Company B revoked my H1b petition in March 2017 and my last pay stub was run until January 2017. Am I still eligible to stay in the USA as my H1b petition with Company C has been not revoked? 

4) Now, I have kept requesting Company C to run my pay stubs to be in status. But they are saying that I am not their employee at all as there was not even a single pay stub run when I had a project at the client. Is this true?? because when I did some research I found that an employer should have to pay his employee no matter whatever be the circumstances. Is this applicable to my situation? Am I not really their employee at all?

5) Now I got a new project and have to file for an amendment. Company C says that they will file an amendment as a new hire with out any pay stubs --- can anyone tell what will be the chances of getting approvals if I go in this process? Is there any alternate solution?? Please advise.

Appreciate your help in advance.

[satya2k1]

9 hours ago, aishuuu143 said:

Hi All,

Company A: first employer with visa stamping
Company B: Employer with whom the pay stubs were run till January 2017
Company C: current employer

I Would like to confirm few things and have few questions on behalf of one of my friends:

1) I went to India in December 2016 on Company A visa stamping and came back in January 2017 on Company B H1b petition (My H1B petition with Company A was revoked in January 2016)-- Can I do this still?

You already did this.. so I am not sure what you are asking about.

2) While on Company B, before I had my India travel plans I applied for H1b transfer(COS) to Company C in October 2016 in premium but received the I797A very late in February 2017 (with validity dates from October 2016 till September 2019)as my original notice was missed by the postal services. So not knowing the status of my h1b petition, I didn't want to take risks so I continued working with Company B --- Can I do this legally??

As long as you have Valid I94, and work authorization from Company B then you are good.

3) After I came back to the USA Company B revoked my H1b petition in March 2017 and my last pay stub was run until January 2017. Am I still eligible to stay in the USA as my H1b petition with Company C has been not revoked? 

If you have valid I-797 with I94 from Company C, and you are getting paid then you are good.

4) Now, I have kept requesting Company C to run my pay stubs to be in status. But they are saying that I am not their employee at all as there was not even a single pay stub run when I had a project at the client. Is this true?? because when I did some research I found that an employer should have to pay his employee no matter whatever be the circumstances. Is this applicable to my situation? Am I not really their employee at all?

An H1B sponsored employer must pay their employees atleast the prevailing wages in accordance with LCA, with project or without project doesn't matter.

5) Now I got a new project and have to file for an amendment. Company C says that they will file an amendment as a new hire with out any pay stubs --- can anyone tell what will be the chances of getting approvals if I go in this process? Is there any alternate solution?? Please advise.

If company C apply for amendment without pay stubs, then be ready to face an RFE. 

Appreciate your help in advance.

 

[aishuuu143]

Thank you for your responses.

4) Now, I have kept requesting Company C to run my pay stubs to be in status. But they are saying that I am not their employee at all as there was not even a single pay stub run when I had a project at the client. Is this true?? because when I did some research I found that an employer should have to pay his employee no matter whatever be the circumstances. Is this applicable to my situation? Am I not really their employee at all?

An H1B sponsored employer must pay their employees atleast the prevailing wages in accordance with LCA, with project or without project doesn't matter.

For the above point, Company C never provided any sort of documents like offer letter/employment authorization agreement/my original H1B (I797A) packet. But my H1B petition is still active with them and not even a single pay stub is run so far. Being this situation, am I still said to be their employee even if there are no documents signed between me and my employer? or are there any documents which confirm me as their employee. Please advise.

[adshah84]

unless you signed form I9 with your employer your employment is not started

[JoeF]

On 08/19/2017 at 6:36 PM, adshah84 said:

unless you signed form I9 with your employer your employment is not started

Hmm, no.

Form I-9 has to be signed by the employee on day one of the employment, but that has nothing to do with when a person on H1 is considered to be employed.

As per 20 CFR 655.731, a person in H1 is considered to be employed and has to get paid when the person first reports to work. That first day of course should include signing an I-9, but the employer can not claim that the person isn't employed because he/she didn't sign an H1. The employer's HR is responsible for making sure that gets done.

[satya2k1]

On 8/19/2017 at 10:32 AM, aishuuu143 said:

Thank you for your responses.

4) Now, I have kept requesting Company C to run my pay stubs to be in status. But they are saying that I am not their employee at all as there was not even a single pay stub run when I had a project at the client. Is this true?? because when I did some research I found that an employer should have to pay his employee no matter whatever be the circumstances. Is this applicable to my situation? Am I not really their employee at all?

An H1B sponsored employer must pay their employees atleast the prevailing wages in accordance with LCA, with project or without project doesn't matter.

For the above point, Company C never provided any sort of documents like offer letter/employment authorization agreement/my original H1B (I797A) packet. But my H1B petition is still active with them and not even a single pay stub is run so far. Being this situation, am I still said to be their employee even if there are no documents signed between me and my employer? or are there any documents which confirm me as their employee. Please advise.

When your Company C applied for H1B, they do mention your employment start date in LCA.  so, no matter what, the company have to start paying you from that date unless they lay off or revoke your H1.  the H1 approval notice, I-797 is one of the documents shows that you are an employee for that Company C.  Other documents are your pay stubs showing that you are employee of that particular employer.  form I-9 ( Employment Eligibility Verification) is only for verification purpose for employer to check that applicant is authorized to work legally in USA, and does not work to show that you are an employee for that employer.

[aishuuu143]

Thank you so much for your responses.

Coming back to my question in point 1:

Company A: first employer with visa stamping
Company B: Employer with whom the pay stubs were run till January 2017
Company C: current employer

I Would like to confirm few things and have few questions on behalf of one of my friends:

1) I went to India in December 2016 on Company A visa stamping and came back in January 2017 on Company B H1b petition (My H1B petition with Company A was revoked in January 2016).

Does this have anything to do with Company C i94 validity? Because now my employer (Company C) says that I have re-activated my old I94 visa for which the H1B was revoked which is illegal. As this happened, she says that Company C I94 validity has been invalid now. Is this true?

My another question for point 3 is:

3) After I came back to the USA Company B revoked my H1b petition in March 2017 and my last pay stub was run until January 2017. Am I still eligible to stay in the USA as my H1b petition with Company C has been not revoked? 

When an H1B petition revoke is initiated, what date will be considered as the consultant having no relationship with the company? Is it the date when the revoke has been initiated by the company or the date which shows online in USCIS website saying the revoke has been approved (what happens if the revoke approval is after 4 months of the revoke initiated date - what will be the status of the consultant)