New H1B application - Urgent

[ag623391]

Hi my employer did not pay me according to LCA during 2.5 years and now I have a new job offer. In case I accept the new offer there is a possibility my old employer will revoke my H1B application. So here are my questions-

 

1. My new employer will have to file a new application for H1B. I have masters from a prestigious school will I be cap exempt?

2. Since new H1B will start from Oct 2014. How will I work with new employer starting now and till Oct 2014?

3. Do I need to file a complaint to DOL for old employer? or I just let it go because it is past.

 

Please advice in any way you can. Thanks

[jairichi]

Hi my employer did not pay me according to LCA during 2.5 years and now I have a new job offer. In case I accept the new offer there is a possibility my old employer will revoke my H1B application. So here are my questions-

 

1. My new employer will have to file a new application for H1B. I have masters from a prestigious school will I be cap exempt?

2. Since new H1B will start from Oct 2014. How will I work with new employer starting now and till Oct 2014?

3. Do I need to file a complaint to DOL for old employer? or I just let it go because it is past.

 

Please advice in any way you can. Thanks

1. If you are counted against cap once then till you utilize 6 years on H1B you are cap exempt.

2. You can start immediately after H1B petition approval.

3. You have to as you are considered out of status if you are paid lower than LCA.

[ag623391]

Thanks for reply. What happens in the case if my employer revokes H1B application. Will then my new employer be able to file a new H1B application which will be cam exempt? in this case will  I have to wait till Oct to start working or can start working immediately.

[omshiv]

you should have complained to DOL to teach these fraud employers a lesson of their life.

[jairichi]

Thanks for reply. What happens in the case if my employer revokes H1B application. Will then my new employer be able to file a new H1B application which will be cam exempt? in this case will  I have to wait till Oct to start working or can start working immediately.

Your new employer has to file a cap exempt H1B application before your last day of work. H1B revocation is irrelevant here. Once approved you can start working immediately.

[hightech]

1) You are under cap exempt and within 6 years of time frame can transfer H1B to any employer or multiple employers.

2) Once you have received the receipt can start working for a new employer.

3) If the employer didn't pay according to LCA then you have rights to complaint to DOL or consult an attorney send a legal notice.

 

In most of the cases employer will come for out of the court settlement when you approach with an attorney.

[hightech]

This is to "jairichi"

 

"3) You have to as you are considered out of status if you paid lower than LCA."

 

He is not 100 % out of status because he was paid by employer it doesn't matter either.

 

Please make sure before giving any answer it goes to lot of audience

[rahul412]

what's mean by "not 100% out of status"??

 

If a person is out of status then he is out of status.

[jairichi]

This is to "jairichi"

 

"3) You have to as you are considered out of status if you paid lower than LCA."

 

He is not 100 % out of status because he was paid by employer it doesn't matter either.

 

Please make sure before giving any answer it goes to lot of audience

As rahul412 mentioned can you define "100% out of status" in OP's situation? If you are paid less than salary mentioned in LCA you are out of status and there is no range of 0 to 100% in being out of status.

[hightech]

Lets take an example

If employee "A" worked 50 hours/month for couple of months supposed to work for 160 hours/month due to his persons issues and was paid by employer.

 

Was the employee an illegal or out of status in this country ?

 

He is not an out of status because he was paid by an employer.

 

If he worked for 160 hours/month and employer did not pay proper then he will complaint to DOL or local county court.

[jairichi]

Lets take an example

If employee "A" worked 50 hours/month for couple of months supposed to work for 160 hours/month due to his persons issues and was paid by employer.

 

Was the employee an illegal or out of status in this country ?

 

He is not an out of status because he was paid by an employer.

 

If he worked for 160 hours/month and employer did not pay proper then he will complaint to DOL or local county court.

If employee A worked for less hours with no valid reason, was paid only for those hours and did not have his H1B petition amended to part time he is considered out of status.

[jairichi]

Lets take an example

If employee "A" worked 50 hours/month for couple of months supposed to work for 160 hours/month due to his persons issues and was paid by employer.

 

Was the employee an illegal or out of status in this country ?

 

He is not an out of status because he was paid by an employer.

 

If he worked for 160 hours/month and employer did not pay proper then he will complaint to DOL or local county court.

And, still we are waiting for your definition for "not 100% out of status".

[jairichi]

Lets take an example

If employee "A" worked 50 hours/month for couple of months supposed to work for 160 hours/month due to his persons issues and was paid by employer.

 

Was the employee an illegal or out of status in this country ?

 

He is not an out of status because he was paid by an employer.

 

If he worked for 160 hours/month and employer did not pay proper then he will complaint to DOL or local county court.

You have to understand one thing. OP let this business of being underpaid than LCA go on for 2.5 years. And, now when the issue of a moving to a new employer came up wants to know whether a complaint can be filed with DOL.

 

When one goes for H1B stamping and if your pay stubs do not meet salary mentioned in LCA then don't expect to get a visa as it is considered immigration fraud. 

 

And, based on your employee A's case employer has to amend H1B petition to part time and pay accordingly.

[rahul412]

Lets take an example

If employee "A" worked 50 hours/month for couple of months supposed to work for 160 hours/month due to his persons issues and was paid by employer.

That doesn't matter. On H1 employee has to get paid monthly not by number of working hours.

If that's the case then he won't get paid when he is on bench but that's not allowed on H1.

LCA has annual salary not hourly salary.