H4 to H1B approved, but no project yet

depen

By depen,
in H1B : H-4 Issues

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depen Newbie

depen

Posted
Posted

Could you please help?

 

I am in US from march 2013. My H1B was applied in April and approved in August. But the employer is yet to find a project. So, they are going to file my status change back to H4. Am I out of status now? Do I have 60 days grace period in H1 to start work and be paid?

If my status change to H4 is not approved by Dec 1st, is there any issues? Is filing enough?

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jairichi Advanced Member

jairichi

Posted
Posted

Could you please help?

 

I am in US from march 2013. My H1B was applied in April and approved in August. But the employer is yet to find a project. So, they are going to file my status change back to H4. Am I out of status now? Do I have 60 days grace period in H1 to start work and be paid?

If my status change to H4 is not approved by Dec 1st, is there any issues? Is filing enough?

From Oct 1st 2013 whether project is there or not your employer has to pay you. Otherwise you are out of status. Being out of status your change of status to H4 would be denied as you would need to submit pay stubs when you apply for change of status to H4. The only option for you would be is to file a compliant against your employer with DOL.

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rahul412 Advanced Member

rahul412

Posted
Posted

Could you please help?

 

I am in US from march 2013. My H1B was applied in April and approved in August. But the employer is yet to find a project. So, they are going to file my status change back to H4. Am I out of status now? Do I have 60 days grace period in H1 to start work and be paid?

If my status change to H4 is not approved by Dec 1st, is there any issues? Is filing enough?

Their is no grace period here. You are on H1 from Oct 1st and you have to get paid every month on H1.

Currently you are out of status for not getting paid, just file a complaint against that employer if he doesn't pay you.

Your COS will be in trouble if you can't submit your latest pay-stubs at that time.

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chakrakr Advanced Member

chakrakr

Posted
Posted

The above replies are incorrect and incomplete.  By law,  you have 60 days to report to Employer when you are doing a COS (30 days if you are entering US on H1).    you are free not to report to employer during this 60 days period.

 

However,  this  does not mean that you can report to employer and sit on bench without pay for 60 days. 

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jairichi Advanced Member

jairichi

Posted
Posted

The above replies are incorrect and incomplete.  By law,  you have 60 days to report to Employer when you are doing a COS (30 days if you are entering US on H1).    you are free not to report to employer during this 60 days period.

 

However,  this  does not mean that you can report to employer and sit on bench without pay for 60 days. 

Thanks for the information chakrakr. Could you share the link about this 60 days period to join employer? Would be helpful for us.

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chakrakr Advanced Member

chakrakr

Posted
Posted

Thanks for the information chakrakr. Could you share the link about this 60 days period to join employer? Would be helpful for us.

 

http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62I.pdf  

 

In particular --

 

 

When does the obligation to pay for nonproductive time start?

Non productive pay requirements begin with the earliest of the applicable following events:

• The H-1B worker "enters into employment" with the sponsoring employer, which occurs when the worker first makes him/herself available for work or otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam;

• No later than thirty (30) days after the H-1B worker is first admitted into the U.S. pursuant to the H-1B petition, whether or not the H-1B worker has "entered into employment";

• No later than sixty (60) days after the date the H-1B worker becomes eligible to work for the employer (the approval date found on the U.S. Citizenship and Immigration Services (USCIS) (formerly the Immigration and Naturalization Service) Notice of Action, Form I-797), whether or not the H-1B worker has "entered into employment"; or

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jairichi Advanced Member

jairichi

Posted
Posted

http://www.dol.gov/whd/regs/compliance/FactSheet62/whdfs62I.pdf  

 

In particular --

 

 

When does the obligation to pay for nonproductive time start?

Non productive pay requirements begin with the earliest of the applicable following events:

• The H-1B worker "enters into employment" with the sponsoring employer, which occurs when the worker first makes him/herself available for work or otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam;

• No later than thirty (30) days after the H-1B worker is first admitted into the U.S. pursuant to the H-1B petition, whether or not the H-1B worker has "entered into employment";

• No later than sixty (60) days after the date the H-1B worker becomes eligible to work for the employer (the approval date found on the U.S. Citizenship and Immigration Services (USCIS) (formerly the Immigration and Naturalization Service) Notice of Action, Form I-797), whether or not the H-1B worker has "entered into employment"; or

Thanks Chakrakr for the link.

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muskaan2110 Newbie

muskaan2110

Posted
Posted

Hi,

My visa alos got aprroved from H4 to H1 in mid oct 2013. Now as I m searching for job /project , my employer suggested that they will show me on leave till dec end or til lthe time , I dont get a project .

 

And regarding my status , they said , that my H4 status will still continue , untill they  raise an e-rquest or e-verify to uscis for status change.

 

Please suggest , is it all valid .

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  • 1 year later...
JoeF Advanced Member

JoeF

Posted
Posted

 

Hi 

muskaan2110    I am in same situation. Please share your experice . How it worked for you? Is 60 days time allowed to start payroll? 

 

 

In that situation described, the person has reported to work for the employer, and needs to get paid.

Searching for a project means the person has reported to work, and absolutely needs to get paid.

If you are not working because your employer doesn't have a project for you, your employer still needs to pay you.

It is therefore in the best interest of the employer to find a project for you. It is his task, not yours to find a project.

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jairichi Advanced Member

jairichi

Posted
Posted

Havenot reported yet...Will be starting from 15th this month...

Please suggest if there is any issue in that?As, i wont be paid from 1st oct-15nov...

if that 60 days time apply?

If you have not yet reported to your employer and will report for work on 15th November and get paid from that time you are fine.

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JoeF Advanced Member

JoeF

Posted
Posted

Havenot reported yet...Will be starting from 15th this month...

Please suggest if there is any issue in that?As, i wont be paid from 1st oct-15nov...

if that 60 days time apply?

 

So what now? Are you taking a leave or haven't reported to work yet?

Trying to make it sound as if you haven't reported to work is not going to work.

You need to get paid. A fake leave masquerading as "not having reported to work" still requires the employer to pay you.

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tara12 Advanced Member

tara12

Posted
Posted

So what now? Are you taking a leave or haven't reported to work yet?

Trying to make it sound as if you haven't reported to work is not going to work.

You need to get paid. A fake leave masquerading as "not having reported to work" still requires the employer to pay you.

 

Yes i had plans.....but now i am planning to join him........

you mean this is issue?

Is re-entering on h4 again and then changing COS to h1b the only solution?

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