H4 - H1B Payroll Issue

[raj_cv]

Hello,

 

My wife's H1B is approved under 2014 quota and is valid from Oct 1st 2014 - Oct 2017.

She is previously on H4 (which is valid till Oct 2014)

 

Now the issue is, since she is with a desi consulting firm, her employer says, he will not run the payroll until they find the job at client site. 

 

Employer says, we filed H1B saying that we have an requirement and USCIS provided you H1B basing on it. You need not accept the offer until we find a proj@ client site. From then on payroll will be run regularly. 

 

- So can anyone clarify if it is legal to be on H1B and not have payroll run. 

- If yes for how many days can we be like that?

 

Thanks in advance,

Raj.

[JoeF]

Hello,

 

My wife's H1B is approved under 2014 quota and is valid from Oct 1st 2014 - Oct 2017.

She is previously on H4 (which is valid till Oct 2014)

 

Now the issue is, since she is with a desi consulting firm, her employer says, he will not run the payroll until they find the job at client site.

 

That's ILLEGAL.

On H1, she needs to get paid ALL THE TIME, even on bench without a project. That requirement starts as soon as she reports to work or comes under control of the employer, e.g., for training, going to interviews, etc.

Your wife needs to file a complaint with DOL on form WH4. And she should find a better employer. This one is obviously a fraud.

[jairichi]

If she has reported for work, whether project available or not she has to be paid her H1B salary. If not file a complaint with DOL and move to a good employer.

If she has not reported to H1B employer she has 60 days to do so.

[rahul412]

 

Employer says, we filed H1B saying that we have an requirement and USCIS provided you H1B basing on it. You need not accept the offer until we find a proj@ client site. From then on payroll will be run regularly. 

 

- So can anyone clarify if it is legal to be on H1B and not have payroll run. 

- If yes for how many days can we be like that?

No that's not true, its clear that he is a fraud. How can he file for H1 without a job?

File a complaint against this fraud employer and find another employer.

[raj_cv]

Thanks for all the replies.

So taking into consideration that my wife did not report to the employer, from what jairichi have mentioned above, she can wait for 60 days from h1b start date. Means she has 60 days before accepting the job offer from her employer. Did i understand that Correctly??

[JoeF]

Thanks for all the replies.

So taking into consideration that my wife did not report to the employer, from what jairichi have mentioned above, she can wait for 60 days from h1b start date. Means she has 60 days before accepting the job offer from her employer. Did i understand that Correctly??

 

Well, she obviously has made herself available for work, and is waiting for an assignment, so that would be having reported to work.

The law (20 CFR 655.731) says (in particular,s ee the bold part):

"(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."