H1 to H4 transfer - DOL Complaint

[N.Kumar]

My wife worked on L2 for an employer for about 15 months.
her employer filed her H1 in 2013 which got approved.
On October 1st when her H1 was about to begin she had to start her maternity vacation.
In December 2013 when she was reporting back to work, her employer told that he terminated her due to lack of work as soon she went for maternity vacation.
He tried to schedule some interview in next 3 months but couldn't and ultimately we had to file her H4 (As i also moved to H1 in October 2013) in April 2014.

No payment made during October 2013 and April 2014
We have proofs in email for all above and pay stub till September 30th 2013
In May 2014 employer revoked H1.
Now we wish to file a complaint against her employer in DOL.

Could you suggest:

if this would be a correct move at this point?
Is there any adverse consequences  we should be ready for filling a complaint?
Should we allow DOL to use our name so that they can directly approach employer with this particular matter and processing time can be reduced?

How much time DOL takes to resolve such cases?

[jairichi]

I do not think your wife ought to be paid during maternity leave. Also, if termination of employment was not at the time of her maternity leave then there is nothing to contest. I am not 100% sure about my opinion. You need to talk to an attorney.

[omshiv]

forget DOL...your and your wife's mistake! if she was pregnant...then she should have filed for H4 until when she's ready to get back to work...

[itsmeusa]

I am trying to understand on what basis you are taking this extreme step of complaining to DOL. In my opinion, you have no case to make.

[N.Kumar]

Thanks for your kind words omshiv/Jairichi/itsmeusa - any suggestions on following:

 

if this would be a correct move at this point considering he terminated my wife while she was on maternity vacation?

Being her H1 employer he didn't gave her ant kind of notice of termination?
Is there any adverse consequences  we should be ready for filling a complaint?

[jairichi]

Thanks for your kind words omshiv/Jairichi/itsmeusa - any suggestions on following:

 

if this would be a correct move at this point considering he terminated my wife while she was on maternity vacation?

Being her H1 employer he didn't gave her ant kind of notice of termination?

Is there any adverse consequences  we should be ready for filling a complaint?

If she was on approved FMLA and terminated during that time I believe it is illegal. But, there are exceptions. Talk to an attorney.

Termination of employment is at will in US.

[N.Kumar]

Thanks for your reply on this jairichi - I spoke to a non immigration expert attorney and he said that as far as H1B rules are concerned your employer suppose to pay until he revokes H1B and it doesn't matter if he says that he terminated you in informal way over phone.

 

As per attorney, Termination at will is fine but when employer holds a H1B VISA of an non-immigrant employee, its their duty to formally inform employee of termination, offer return ticket and revoke H1B immediately. If employer fails do this he is liable to pay wages mentioned in LCA until he revokes H1B. Please suggest whats your thought on it.

[rahul412]

 

As per attorney, Termination at will is fine but when employer holds a H1B VISA of an non-immigrant employee, its their duty to formally inform employee of termination, offer return ticket and revoke H1B immediately. If employer fails do this he is liable to pay wages mentioned in LCA until he revokes H1B. Please suggest whats your thought on it.

That's correct, employer should inform about terminating the employment so that the employee will file COS to H4 in order to avoid getting into out of status.

[jairichi]

Thanks for your reply on this jairichi - I spoke to a non immigration expert attorney and he said that as far as H1B rules are concerned your employer suppose to pay until he revokes H1B and it doesn't matter if he says that he terminated you in informal way over phone.

 

As per attorney, Termination at will is fine but when employer holds a H1B VISA of an non-immigrant employee, its their duty to formally inform employee of termination, offer return ticket and revoke H1B immediately. If employer fails do this he is liable to pay wages mentioned in LCA until he revokes H1B. Please suggest whats your thought on it.

I agree with what your attorney said. But, I doubt whether pay applies when under FMLA.Your attorney might be right as I am not in that profession.

[N.Kumar]

jairichi - We are not expecting being paid under FMLA. Our basis of complain would be only for the payment after FMLA.

[jairichi]

jairichi - We are not expecting being paid under FMLA. Our basis of complain would be only for the payment after FMLA.

I get your point that it is not about payment of salary during FMLA. But, I am concerned about your initial post that mentions "In December 2013 when she was reporting back to work, her employer told that he terminated her due to lack of work as soon she went for maternity vacation". If she was terminated during FMLA she has a case against her employer. If she was terminated after she joined from FMLA I doubt she has a case. This is in my opinion and as I said earlier I am not an atorney and just do not trust my opinion to be 100% right.

[N.Kumar]

For the information of users and specially for ones like omshiv who are rude and misleading people here- we filed a complaint against employer in DOL and decision was made in our favor. 

[jairichi]

For the information of users and specially for ones like omshiv who are rude and misleading people here- we filed a complaint against employer in DOL and decision was made in our favor. 

Oh good to know that. Thanks for posting an update.