H1-B visa Transfer Issues

[Dellacer]

Good morning and thanks in advance to everyone in this forum;

 

Here is my question regarding H1-B Visa transfer.

 

I worked (and still do) for a small company "A" based on my home country. Last year, I got an offer for an assigment  in a "big" company "B" in the US. This company, where I work as a contractor, is the one who wants to hire me directly. 

 

Now, company B wants use the H1-B portability to avoid the "cap" issue. But I have my concerns and I'm sure i'll face some trouble because of the following:

 

     1 - I only have paystubs for the last 60 days. My company took a long time Oct-Jun to set up the payroll.  I was the first employee in the company to be transferred to USA (and unfortunately at that point I didn't know how important it is for a H1-B visa worker having those paystubs). During this time my company ran my paystubs in my home country (I know that it doesn't make any difference).

 

    2 - Seems like my anual salary is below the LCA (~10%). But it's also true that I have more vacation, anual flights...

 

    - I haven't accumulate more than 180 days out of status. 

    - My I-94 last for the next two years

 

   3.- On company's "B" side everything is ok. They want to apply using PP.

 

 

I'm sure I can face problems and all this can end up with a denial notice so I guess my question would be..Is there any chance to get an approval? can the USCIS overlook the "past" and let me work for company "B"? Is there any other option?

 

Any experience or advice would be greatly appreciate,

 

Regards,

 

 

 

[rahul412]

It looks like you have lot of issues with your current company.

1. You have to get paid every month in US. India payroll doesn't make any sense when you are working in US physically.

2. Your salary cannot be less than LCA salary, this is another BIG issue

 

Overall your H1 transferred will be rejected since you were not getting paid on H1

[Dellacer]

Yeah that's my fear...

I know it's going to be challenging but do i have any chance, for example in getting a transfer without status extension?in the end... It's not my fault!

- what about if i get the last paystub matching out the LCA? The last time i entered into the country was this month so technically, i'f be in status since my last lawfull entrance...am I rigth?would it help?

Thanks for your answer

[rahul412]

Yeah that's my fear...

I know it's going to be challenging but do i have any chance, for example in getting a transfer without status extension?in the end... It's not my fault!

- what about if i get the last paystub matching out the LCA? The last time i entered into the country was this month so technically, i'f be in status since my last lawfull entrance...am I rigth?would it help?

Thanks for your answer

NOTHING will help you now. ONLY a complaint against that FRAUD employer will keep you in status and helps you in H1 transfer.

Just google DOL WH4.Without this you can't do anything.

[Dellacer]

Thanks again for your interest,

 

I don't really mind if I have to file a DOL complain against my employer, how this process will be?

 

 - File a HW4 complain. Stating that I haven't received any payment in USA for the months Oct-May (I did in India)

 - Attach this complain to the H1-B transfer request as an explanation of why I didn't mantain valid status.

 - Join (if company "B" accepts ) to the new company whit the risk of get a denial and as a result I'd need to leave my job and the country.

 

- Wait for the H1-B transfer resolution (PP)

 

  - Wait for the HW4 resolution - I think this will be the fewer of my concerns, as far as money there are only a few grands involved then if the transfer was approved I don't really care about the complain and if the transfer was denied by the time the decision come out I'll in India again. Rigth?

 

- What will happen with my employer? Let's say that he will need to paid me the wages as stated in the LCA, but...anything else? Any kind of fine or something?

 

- How likely is that the USCIS approve my H1-B transfer in this scenario?

 

Thank you very much, I've already contacted to my prospective employer's lawyer but hearing different opinions it's always great.

 

Regards, 

[rahul412]

Thanks again for your interest,

 

I don't really mind if I have to file a DOL complain against my employer, how this process will be?

 

 - File a HW4 complain. Stating that I haven't received any payment in USA for the months Oct-May (I did in India)

 - Attach this complain to the H1-B transfer request as an explanation of why I didn't mantain valid status.

 - Join (if company "B" accepts ) to the new company whit the risk of get a denial and as a result I'd need to leave my job and the country.

 

- Wait for the H1-B transfer resolution (PP)

 

  - Wait for the HW4 resolution - I think this will be the fewer of my concerns, as far as money there are only a few grands involved then if the transfer was approved I don't really care about the complain and if the transfer was denied by the time the decision come out I'll in India again. Rigth?

 

- What will happen with my employer? Let's say that he will need to paid me the wages as stated in the LCA, but...anything else? Any kind of fine or something?

 

- How likely is that the USCIS approve my H1-B transfer in this scenario?

 

Thank you very much, I've already contacted to my prospective employer's lawyer but hearing different opinions it's always great.

 

Regards, 

Your old employer failed to follow H1 rules, so you have to file complaint. And what you have mentioned in the above post is correct. That's how it works.