H4 to H1B No Payroll in Oct & Nov

[AlokRaj]

Hi,

My wife who was on H4 got her H1 approved and her new I-94 states start date as Oct 1, 2013. As my wife didn't had a project and SSN in the month of OCT and NOV, her employer is stating that there is a 1 month grace period allowed and as my wife didn't had SSN he is not running payroll for November. I want to know:

1) Is there any law of grace period? If yes where is the law stated?

2) Can employ be on H1 without payroll?

3) Can any employer process a payroll for 2 month backlog now or anytime after 2 months as well ? He has third party payroll processing company

4) What if employer is not willing to run the payroll?

[JoeF]

While a person in the US who did COS has up to 60 days to report to work, once the person has reported to work, the person has to get paid.

And not having the SSN yet is NOT an excuse to not pay the person.

Your wife needs to file a complaint with DOL on form WH4.

And she should find a better employer, one who follows the law.

Avoid ALL consulting companies. As she found out the hard way, these consulting companies are shady, are frauds.

[jairichi]

Hi,

My wife who was on H4 got her H1 approved and her new I-94 states start date as Oct 1, 2013. As my wife didn't had a project and SSN in the month of OCT and NOV, her employer is stating that there is a 1 month grace period allowed and as my wife didn't had SSN he is not running payroll for November. I want to know:

1) Is there any law of grace period? If yes where is the law stated?

2) Can employ be on H1 without payroll?

3) Can any employer process a payroll for 2 month backlog now or anytime after 2 months as well ? He has third party payroll processing company

4) What if employer is not willing to run the payroll?

The answer is simple, the employer is committing fraud. Your wife needs to be paid on H1B whether project is available or not. Otherwise she is out of status. She has to file a complaint against employer with DOL immediately. This would help her get her salary as well as to transfer her heB to another employer

[AlokRaj]

Thanks JOE for the reply. Is there any section within Immigration low which supports this statement "While a person in the US who did COS has up to 60 days to report to work" ?

[JoeF]

Thanks JOE for the reply. Is there any section within Immigration low which supports this statement "While a person in the US who did COS has up to 60 days to report to work" ?

20 CFR 655.731.

"(6) Subject to the standards specified in paragraph ©(7) of this section (regarding nonproductive status), an H-1B nonimmigrant shall receive the required pay beginning on the date when the nonimmigrant “enters into employment” with the employer.

(i) For purposes of this paragraph ©(6), the H-1B nonimmigrant is considered to “enter into employment” when he/she first makes him/herself available for work or otherwise comes under the control of the employer, such as by waiting for an assignment, reporting for orientation or training, going to an interview or meeting with a customer, or studying for a licensing examination, and includes all activities thereafter.

(ii) Even if the H-1B nonimmigrant has not yet “entered into employment” with the employer (as described in paragraph ©(6)(i) of this section), the employer that has had an LCA certified and an H-1B petition approved for the H-1B nonimmigrant shall pay the nonimmigrant the required wage beginning 30 days after the date the nonimmigrant first is admitted into the U.S. pursuant to the petition, or, if the nonimmigrant is present in the United States on the date of the approval of the petition, beginning 60 days after the date the nonimmigrant becomes eligible to work for the employer. For purposes of this latter requirement, the H-1B nonimmigrant is considered to be eligible to work for the employer upon the date of need set forth on the approved H-1B petition filed by the employer, or the date of adjustment of the nonimmigrant's status by DHS, whichever is later. Matters such as the worker's obtaining a State license would not be relevant to this determination."

 

Again, as soon as your wife made herself available for work, going to interviews, etc. (see the text above), she needs to get paid.