H4 to H1b out of status- request for early response

[Mahi@Mahesh]

I came to Us on a H4 visa in Jan 2013, applied for H1b Visa through Desi Consultancy and  got it by Oct .
I was under the assumption that H1b is valid from the day I start working because one of my friend had a same scenario where she had begun working 6 months after H4 to

H1 COS (apparently it turns out that she wasn't aware of it either).   In the meantime, my employer unfortunately has not been able to get me a single interview so

far.  Now I am jobless its been 3months 15 days not having job also play slips

I planned to change my employer around which I began checking in forums for the impacts of employer change and thats when I got to know that I am OUT OF STATUS now.
I immediately spoke to my employer what best could be done to deal with my status where in I was told the below:
 *for Nov and Dec month, I would have to give a leave letter
 *from JAN they could generate paystub.  For this paystub generation however, I have been asked to pay $1400 (per month) to cover all the taxes
They say, by doing this I could maintain status

I have been in touch with a few other consultancies who say they can handle transfer of my visa, but they are not telling me the procedure how they are going to

transfer without having pay stubs.

Please recomended the options that I have for this situation.

 

[jairichi]

I came to Us on a H4 visa in Jan 2013, applied for H1b Visa through Desi Consultancy and  got it by Oct .

I was under the assumption that H1b is valid from the day I start working because one of my friend had a same scenario where she had begun working 6 months after H4 to

H1 COS (apparently it turns out that she wasn't aware of it either).   In the meantime, my employer unfortunately has not been able to get me a single interview so

far.  Now I am jobless its been 3months 15 days not having job also play slips

I planned to change my employer around which I began checking in forums for the impacts of employer change and thats when I got to know that I am OUT OF STATUS now.

I immediately spoke to my employer what best could be done to deal with my status where in I was told the below:

 *for Nov and Dec month, I would have to give a leave letter

 *from JAN they could generate paystub.  For this paystub generation however, I have been asked to pay $1400 (per month) to cover all the taxes

They say, by doing this I could maintain status

I have been in touch with a few other consultancies who say they can handle transfer of my visa, but they are not telling me the procedure how they are going to

transfer without having pay stubs.

Please recomended the options that I have for this situation.

If your H1B petition was approved as COS then you have 60 days to report to employer. It is the duty of employer to find project for you. Whether project is available or not you have to be paid on H1B status. Otherwise you are out of status. Your employer had violated this immigration rule. Further your employer is asking you to violate more immigration rules by applying for 2 months leave and generating fake pay stubs by taking money from you. There is no unpaid vacation on H1B and stay in US. The best solution for you in the current situation is to file a complaint against employer with DOL. This would not only help you to get your salary from employer but also move to a new employer. If you do what your employer says you are a party to immigration fraud and you should be ready to face the consequences which might be a ban to enter and stay in US.

[Mahi@Mahesh]

Thanks for your valuable  response ..Please guide me what is the procedure approaching DOL and the consequences i have to go through.

[Mahi@Mahesh]

Thanks for the update .. i am worried about filing the complaint since I am unaware of the consequences later.   I am not sure whether the eventual legal verdict will be in my favor nor about the duration and cost it takes.   Also given that currently my Visa is out of status, am not sure whether the case that I file holds good.   Further since the employer (obviously) should be a resident, am not sure if the case will hold.  Further will this case filing have any impacts on my future employment prospects and any further Visa/GC processing.

From a few friends I understand that it is very difficult to fight legall case because you are supposed to spend lot of money on it and moreover we have come here on H1b (immigrants) so worried about future consequences.how feasible is it to approach legally?

[JoeF]

Thanks for the update .. i am worried about filing the complaint since I am unaware of the consequences later.

The only consequences there are happen if you don't file a complaint.

There is no cost for you to file a complaint with DOL on form WH4. And the employer is a US employer (he has to be for an H1), and as such, this falls under US jurisdiction.

Without filing a complaint, you can't even change employers.

Do the right thing: file a complaint with DOL.

[jairichi]

http://www.dol.gov/wecanhelp/howtofilecomplaint.htm

 

By what you have posted it is sure that employer is at fault. It does not matter whether the employer is a US resident or a foreigner conducting his/her business in US. They have to abide by labor and immigration laws (if they hire a foreigner). You can take the help of a labor attorney, if you want. It is your choice. Basically when you file a complaint with DOL and provide documents and others proofs to support your claim there will be an officer assigned to your case and investigation will commence. All this are free. You being out of status is a consequence of your employer not following immigration law and you will not  held responsible for it.

 

More than talking to your friends I would suggest you to contact DOL and they will clearly explain you the process. And, as usual all discussions are treated confidential by them.

[jairichi]

This website is more pertinent to your issue

 

http://www.dol.gov/whd/forms/fts_wh4.htm

[Mahi@Mahesh]

Thanks a lot for sharing the information Its more helpful for people like me who are in same state  as me