H1B transfer with a partial pay check


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Hi ,

I’m with current employer since almost 3.5 yrs and last month my client project ended in the middle of the month . My employer runs pay check for 4 weeks. So, in my last pay check though it was run for 4 weeks ( pay check start and end date duration is 4 weeks )the number of hours are mentioned as 80 hrs ( instead of regular 160 hrs) and I was paid only for 80 hrs . Now , I almost got a new offer where my new company is willing to transfer H1B visa . As my last pay slip amount was only half my regular pay and 60% of LCA specified amount , would it be an issue for H1 transfer ? All my old pay stubs have entire amount except for the last one . If I go ahead and transfer H1 what are the possibilities ? I’m planning to start only after new H1 gets approved .

 

1) If the new H1 transfer gets denied saying I was out of status for last 15 days as my pay check was not meeting LCA amount though the employment period is for all 4 weeks . Would USCIS ask me to leave the country as my old employer wasn’t paying while not working ? My old employer has my petition and I94 approved till 2021.

 

2) Would my current employment get affected by H1 transfer rejection or H1 transfer has no relation to my current employment status ? Ex: Say H1 transfer gets denied saying I was out of status for two weeks but I can still continue with my old employer as I94 and petition is valid till 2021.

 

I am planning not to take the offer if rejection would result in me leaving the country though my current employer has approved petition and I94 till 2021. Please advice ?

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Thanks for the quick response. My case is a little complicated . My employer never benched me unlawfully . My employer filed my LCA for $80k per annum but I get close to $60 an hour which would be technically $120k per annum  . So , when the last pay check end date  arrived at the middle of the month I was  assigned to project . I took a two week vacation in the first half of pay cycle when I was with my client project as I was never aware of my project coming to an end  . So, as usual my employer ran the pay check hourly  and hence the discrepancy in the pay . After I lost the client project ( which is after the pay till date ) , my employer said he would pay me as per the LCA and the pay check is due in a week . Again, when I took two week vacation I emailed the client on my client email which I don’t have access to now . And as an hourly employee we never intimate employer for leave of absence .

My question now is with the above situation going for a H1 transfer would endanger my status with current employer and leave the country ? If yes , then I won’t even accept the offer . If it doesn’t affect my current status then I’m willing for a transfer . And I’m not willing to file a complaint against my employer as they never took any advantage of my situation and are paying when I’m benched . (It’s just that during my last pay check period I took a two week leave and as an hourly employee I missed my 2 weeks pay and unfortunately my client project ended two weeks after the leave )

Please advice . 

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If you get paid hourly you need to get paid for 40 hours/week, even if you work less. 20 CFR 655.731. Again, the employer knows this, b cause that section of the rules is listed right next to the signature line on the LCA, and with his sign, the employer acknowledged to have read and understood that section and to follow it.

File a WH4.

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  • 2 months later...

I got my H1 approved though we submitted partial pay check for the last month  . I guess USCIS is not very particular about it . Most importantly I did ask my employer to run the pay checks later and they obliged . There’s always an option of asking the employer to run the pay checks for a back date . I never knew that . Hope this helps !

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  • 9 months later...

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