H1B Visa Cancelled by CBP, Can I apply for H1 Transfer.

[sivahtchd]

I am holding H1B visa with a COMPANY based at New York and working at the client location in Pennsylvania since Aug 2005.
With some family problems, I moved to India in Mid of 2010 and client has agreed to work from home. Also I got a regular pay until Mid of 2012. Starting from Sept 2012, my COMPANY has not paid me proper salary till date.

Recently in May I got a VISA stamping valid up to Feb 2014 based on my H1B petition extension which was applied last year Nov 2012.
In 1st week of July 2013, I tried to enter US and the Immigration/CBP did NOT allowed me and deported, saying that my petition has been revoked recently in June 2013 (212 a 7 b i ii), which I am not aware of it. Also CBP has cancelled my VISA.

Now my questions are:
A) Should my COMPANY/employer suppose to inform me about the petition (revoke) status? Can I take any action for not informing me and giving me trouble at the Immigration/CBP?

B) Can I claim my employer the full salary since Sept 2012 till my petition revoke date?

C) Can I apply for H1B Transfer and will that be approved for stamping in INDIA?

D) What actions should I take to get back into US...

Thank you for looking into this and Please let me know if you need any further info from my side.

[omshiv]

Hmm...I would observe this thread as this seems interesting..firstly you were not on any status(H1) while you were working from India. Your company should have informed you about the revoking of H1B..because its a financial loss (airticket) to you and its sad thing that the CBP had to deport you as that could affect your future H1 stamping. Im not sure if you can take any action against your employer for this reason.

 

Also your employer needs to pay you...but since you werent on H1B as you were working from India..I dont know whether the H1 law would work here...still try complaining to the DOL.

 

You can definitely find other company who can sponsor you H1B and get it transferred...and btw you can recapture your H1 period while you were not in the US.

 

The Client must be really nice to allow you to work from home.

[JoeF]

Also your employer needs to pay you...but since you werent on H1B as you were working from India..I dont know whether the H1 law would work here...still try complaining to the DOL.

That won't work. The OP was not in H1 status, so DOL has absolutely no jurisdiction here.

The OP would have to sue the employer for his salary.

Of course, he should have stopped working as soon as there was no money coming to him. I never understand why people continue working when they don't get money.

And as far as the H1 revocation is concerned, the H1 is the employer's application, and they are not required to inform the beneficiary if they cancel it, in particular if the beneficiary is no longer in H1 status, due to working from abroad. The employer actually is required by law to inform USCIS is the person is no longer working on H1 for the company, so the OP should have expected the H1 to be gone, and should have verified with the employer if his job still exists. Just hopping on the plane without verifying the job status is always a bad idea, and in particular here with the employer not paying the salary. That's a BIG clue right there.

[sivahtchd]

Hi OmShiv,

Thanks for your info. I have couple more questions to clarify... 

 

A) My visa is CANCELLED (based on 212 a 7 b i ii), by immigration POE/CBP, also I withdrawn admission into states. So they made an entry in passport last page as "WD - Application for Admission Withdrawn".  Will that effect my future stamping on H1B transfer?

 

B) My H1B petition is revoked but still have I-140 approved in Jan 2011 under EB2 with the same company. Is there any short-cut process to enter US again? (like EAD or 485 filing from a different employer).

[sivahtchd]

Hi OmShiv,

per you

"but since you werent on H1B as you were working from India..I dont know whether the H1 law would work here...still try complaining to the DOL."

 

--- How can an employer generate paystubs when I am not in US or not in an H1B. Isn't it illegal... If I complaint to DOL, the company has to face lot of issues... but will that effect my future status (like GC or H1b Transfer)?

[t75]

Your employer can pay you. Paystubs are expected part of payroll documentations. Since you were not in US, you were not in H1B status and H1B law does not apply. You may have other contract relief depending on what was signed and if it is enforceable.

 

See an attorney if you believe your contract requires payment.

 

I would not expect that you have a cause of action for their revoking their sponsorship. After all YOU "had family problems" and "moved to India". YOU abandoned your H1B job and they got tired of "your family problems". US employers generally expect their employees to appear in the office for work unless they have another contractual arrangement.

 

You have a bigger problem in that you tried to enter the US knowing (by virtue of no salary from your employer) that you had no US job. You are lucky you have not been banned for trying an illegal entry.

 

You can try to find a new H1B employer. You should sit for next quota and if selected, you can return to the US in Oct 2014.