H1-B Transfer Denied.

[Novice_Techie]

Hi All,

I was working for employer A on H1-B till 29th Dec 2019 and Joined Employer B on 2nd Dec 2019 on Receipt. 

The current stamping and i-94 is valid up to Sep 2020. 

Today (6th Dec 2019) online status shows "Case Denied". My attorney is yet to receive the denial notice.

I need few clarifications here. Please provide your input based on your experience. 

1) From when do my stay will count as unlawful presence?

2) Employer B says they will re-file the H1-B Transfer in Premium  the day they will receive the denial notice. How this is going to help me to avoid unlawful presence? What are the chances to get the approval on second attempt?

3) My old employer A hasn't revoked the H1-B yet and they said they will get back to me on how to get back again with them.

If i move to my old employer will my dependents automatically becomes valid or they need to do something else. They too have visa stamped till Sep 2020.

I am very stressed and not sure, what to do be on legal status here.

[User099]

Relax. You will not be going out of status anytime soon. You have a valid I94 till Sept 2020. Even if your employer A revoked you H1, you will have 60 days from the last working day with them to become out of status. 

First lets see what is in the denial notice and then make a decision on re-file with appropriate change. 

You can go back to work for Employer A as they still have not revoked the petition. I don't think they need to do anything, but I am not an attorney to decide it.

Your dependents will be in status as long as you are in status. They don't need to do anything separate right now.

[JoeF]

On 12/6/2019 at 10:42 PM, Novice_Techie said:

Hi All,

I was working for employer A on H1-B till 29th Dec 2019 and Joined Employer B on 2nd Dec 2019 on Receipt. 

The current stamping and i-94 is valid up to Sep 2020. 

Today (6th Dec 2019) online status shows "Case Denied". My attorney is yet to receive the denial notice.

I need few clarifications here. Please provide your input based on your experience. 

1) From when do my stay will count as unlawful presence?

2) Employer B says they will re-file the H1-B Transfer in Premium  the day they will receive the denial notice. How this is going to help me to avoid unlawful presence? What are the chances to get the approval on second attempt?

3) My old employer A hasn't revoked the H1-B yet and they said they will get back to me on how to get back again with them.

If i move to my old employer will my dependents automatically becomes valid or they need to do something else. They too have visa stamped till Sep 2020.

I am very stressed and not sure, what to do be on legal status here.

The old employer was required BY LAW to inform USCIS that you no longer work there. If they didn't do that they will have to pay you even for the time tou didn't work there. Are you telling us that they are breaking the laws?

If they want to hire you back they have to file (and pay for) a new H1 petition.

Edited December 9, 2019 by JoeF

[Novice_Techie]

19 hours ago, User099 said:

Relax. You will not be going out of status anytime soon. You have a valid I94 till Sept 2020. Even if your employer A revoked you H1, you will have 60 days from the last working day with them to become out of status. 

First lets see what is in the denial notice and then make a decision on re-file with appropriate change. 

You can go back to work for Employer A as they still have not revoked the petition. I don't think they need to do anything, but I am not an attorney to decide it.

Your dependents will be in status as long as you are in status. They don't need to do anything separate right now.

Thanks for your input.
 

if i move back to employer A. Do they have to run the payroll from the day i left or it is okay to calculate from the day of re-joining.

[JoeF]

3 hours ago, Novice_Techie said:

Thanks for your input.
 

if i move back to employer A. Do they have to run the payroll from the day i left or it is okay to calculate from the day of re-joining.

If they didn't cancel the H1 it is as if you never left, i.e., they would have to run payroll for all the time.

[User099]

15 hours ago, Novice_Techie said:

Thanks for your input.
 

if i move back to employer A. Do they have to run the payroll from the day i left or it is okay to calculate from the day of re-joining.

Unless they terminated you in their system and can't back date your hire to Dec 2nd, you can take a 7-10 day unpaid vacation. If not, getting paid from Dec 2nd will be good. 

[JoeF]

On 12/10/2019 at 9:18 AM, User099 said:

Unless they terminated you in their system and can't back date your hire to Dec 2nd, you can take a 7-10 day unpaid vacation. If not, getting paid from Dec 2nd will be good. 

There is no such thing as unpaid vacation while staying in the US on H1.

A person on H1 has to get paid ALL THE TIME. If the employer didn't inform USCIS that the employment ended they will have to pay him for all the time he didn't work there.

https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation."

[User099]

7 hours ago, JoeF said:

There is no such thing as unpaid vacation while staying in the US on H1.

A person on H1 has to get paid ALL THE TIME. If the employer didn't inform USCIS that the employment ended they will have to pay him for all the time he didn't work there.

https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation."

From the same site: https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"An employer is not required to pay a nonimmigrant work for nonproductive status if it is based on a decision by the nonimmigrant worker to make him/herself unavailable to work (provided the worker's unavailability is due to conditions unrelated to employment which take the worker away from his/her duties at that worker's voluntary request or convenience or render the nonimmigrant unable to work in accordance with 20 CFR 655.731(c)(7)(ii), and the time is not subject to payment under the employer's benefit plan or other statutes)."

[JoeF]

3 hours ago, User099 said:

From the same site: https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"An employer is not required to pay a nonimmigrant work for nonproductive status if it is based on a decision by the nonimmigrant worker to make him/herself unavailable to work (provided the worker's unavailability is due to conditions unrelated to employment which take the worker away from his/her duties at that worker's voluntary request or convenience or render the nonimmigrant unable to work in accordance with 20 CFR 655.731(c)(7)(ii), and the time is not subject to payment under the employer's benefit plan or other statutes)."

Yes, but that only applies if the person is employed by the employer. The OP wasn't employed anymore. He quit.

For DOL, the employment wasn't terminated properly if the employer didn't inform USCIS. That is what matters, and the employer has to pay the person.

In addition, this section has been abused by shady employers, forcing people to go on leave if they don't have a project. Hence, USCIS would want real evidence, which the OP wouldn't have since he quit.

So, bottom line: the employer has to pay the OP if they didn't inform USCIS. Period. End of story.

Trying to get around the rules would only make it worse.

And of course, falsifying records is a felony.

So, again, if the employer did not inform USCIS the employer has to pay the salary for the time the OP didn't work there. If the employer followed the law and informed USCIS they would have to file (and pay for) a new H1 petition if they want to hire the person back. It is THAT easy. Anything else is fraud. Plain and simple.

Edited December 12, 2019 by JoeF

[User099]

12 hours ago, JoeF said:

Yes, but that only applies if the person is employed by the employer. The OP wasn't employed anymore. He quit.

For DOL, the employment wasn't terminated properly if the employer didn't inform USCIS. That is what matters, and the employer has to pay the person.

In addition, this section has been abused by shady employers, forcing people to go on leave if they don't have a project. Hence, USCIS would want real evidence, which the OP wouldn't have since he quit.

So, bottom line: the employer has to pay the OP if they didn't inform USCIS. Period. End of story.

Trying to get around the rules would only make it worse.

And of course, falsifying records is a felony.

So, again, if the employer did not inform USCIS the employer has to pay the salary for the time the OP didn't work there. If the employer followed the law and informed USCIS they would have to file (and pay for) a new H1 petition if they want to hire the person back. It is THAT easy. Anything else is fraud. Plain and simple.

Your statement about the employer has to pay the employee all the time is blatantly false. You tend to make these statements and when I proved it as a false statement you tend to fall back on you plan to make other unrelated statement and end them with a Period and end of story lines. But you never go back to correcting yourself. I know it might be hard for your understand few things when there are new facts which are put forth which you are not aware of.

Let me explain this to you:

Say an Employee A who is on H1B works for Company X and he gets 21 days of vacation. Due to some reason he used his 21 days during the first half of the year. Later down the line if he had an issue where he did not show up at work for a week or 10 days (inclement weather, family issues or say he is sick). Now will the company X has to still pay him? No, Company X will not pay him for these scenarios just because he is on H1. This proves that your statement that  "A person on H1 has to get paid ALL THE TIME" is false.

Now coming back to the OP's case, his employer might have informed the attorney and attorney will take a few days to file for a withdrawal. In a real world scenario, things don't work at lighting speed when it comes to immigration issues and dealing with attorneys. (No offence to attorney's they have a ton on work to do 🙂 ). Will the company keep paying him till the withdrawal is filed? No, they will not because they might have terminated him in their system and the attorney might take a week or two to file a withdrawal. 

Lets say they did file a withdrawal and USCIS never acknowledges it, will you now say that Company has to pay till the USCIS sends a acknowledgment. These kind of things will not stand in a court of law as there are lot of things that are beyond the control of the employer which might go wrong and its not correct to blame the employer for those. Intention of the employer is not to commit fraud, but there should be given some reasonable time to each party to fulfill their legal obligation.

If the OP wants to go back to the employer after a week and the withdrawal is not filed. They can technically do that. Will it be a new petition or not something the Company's legal team and their attorney's will decide. You can't just put out statements like the employer is fraud and not following the law without considering all the FACTS.

[JoeF]

Even if you don't like it my statement is true.

People are getting RFEs to show that they have gotten paid by the old employer.

Again, the old employer was required BY LAW to inform USCIS that the person no longer works there. Do you understand what BY LAW means???

This is not up to discussion.

And your lame excuse "if USCIS never acknowledges it" is totally bogus. The employer would have a record.

So, again, the employer BY LAW has to inform USCIS. Period. End of story.

Oh, and every immigration lawyer knows this and advises clients accordingly.

Edited December 13, 2019 by JoeF