Definition of Full Time employment and effect on GC Process


MetroMagic

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Hi All,

I have a non current GC process ( with I-140 approved) with my current company. I was employed Full time on salaried basis (biweekly salary) for past 4 years. Now my employer agreed to change my salary from monthly to hourly rate with guaranteed 40 hours a week  and am very positive to have the job through out the year without issues ( touchwood ). It financially helps me to "switch" to this new payment  method( based on hourly rate) 

 

However, what implications it will have on my GC process. Do I have to send any amendments or notify USCIS?? ( my date is not current). Will I still properly fall under "Full time employment" definition with the company . I do not wan the existing petition to become invalid or something.

 

Any inputs appreciated. If it effects (harms) my current GC process, I will forego the hourly rate thing.

 

Thanks a bunch!

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First you cannot send any amendments or notify authorities. PERM is done by DOL and I-140 is part of USCIS and employer must send any correspondence if required.

You need to get regular pay check which should add up to salary mentioned in the wage offer portion of  PERM. Salary above that from overtime pay should be OK but cannot be below PERM offered wage.

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wiweq and ashuneel thank you for your responses.

In my case, I will have project continuously ( with continuous paycheck). Going hourly rate ( and getting paid 40 hours a week) my salary with still be more than PERM (LCA)  offered wage ( currently also it is few grand more than what is specified in LCA). .My employer  will also continue to give me health insurance ( but not just the vacation time  like currently i am getting) In that case am i good?

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 if you are currently FTE and by going to hourly rate you may become contractor for legal purposes. This may violate I-140 if it is filed as Full time employment. Check part 6 of I-140 application. It may not be wise to jeopardize GC process for extra pay so I would get all facts together before making such decision.

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Hourly rate means no money when you dont have project. This is against the H1b rules.

With no pay during bench period, you will be out of status. Your annual salary should be as per LCA salary, divided in pay cycles. 

 

The H1 actually allows hourly salaries.

But the person has to get paid for at least 40 hours/week, even if the person worked less or is on bench.

So, there isn't really any point to get paid hourly,, unless the person regularly works 50-60 hours/week...

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wiweq and ashuneel thank you for your responses.

In my case, I will have project continuously ( with continuous paycheck). Going hourly rate ( and getting paid 40 hours a week) my salary with still be more than PERM (LCA)  offered wage ( currently also it is few grand more than what is specified in LCA). .My employer  will also continue to give me health insurance ( but not just the vacation time  like currently i am getting) In that case am i good?

 

 

So, what's the point then? Hourly pay doesn't give you any more money than the current salary. The same taxes are paid.

Unless you work as independent contractor, which you can't do on H1.

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So, what's the point then? Hourly pay doesn't give you any more money than the current salary. The same taxes are paid.

Unless you work as independent contractor, which you can't do on H1.

OP will get higher hourly rate  and may be willing to sacrifice  paid vacation time as per his post.  It comes down to individual priorities as long as legal requirements are satisfied.

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The H1 actually allows hourly salaries.

But the person has to get paid for at least 40 hours/week, even if the person worked less or is on bench.

So, there isn't really any point to get paid hourly,, unless the person regularly works 50-60 hours/week...

My point was if OP goes hourly and if he is out of project, due to hourly rate he won't get paid. This will make him out of status.

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OP will get higher hourly rate  and may be willing to sacrifice  paid vacation time as per his post.  It comes down to individual priorities as long as legal requirements are satisfied.

 

That's not an explanation. The yearly salary could also be raised. Salary raises are normal. And on H1, vacations have to be paid as well. Unpaid vacation while in the US is not allowed.

It ends up being the same amount of money.

So, it still does not make any sense.

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  • 2 weeks later...

The H1 actually allows hourly salaries.

But the person has to get paid for at least 40 hours/week, even if the person worked less or is on bench.

So, there isn't really any point to get paid hourly,, unless the person regularly works 50-60 hours/week...

 

JoeF

I will get paid atleast 40 hours/week

There will be no bench

company will  continue 401k ,and company will continue health insurance

I will have  paid vacation ( 12 days, standard across company, excluding national holidays)

 

its just by going to this new proposed rate , i will make 28-30% more money over the year

 

considering above--can i still be legally in H1B on hourly and will not get in to restarting GC process ( priorty date 2010)

Please let me know.

If it cannot happen, I will stay in status quo

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JoeF

I will get paid atleast 40 hours/week

There will be no bench

company will  continue 401k ,and company will continue health insurance

I will have  paid vacation ( 12 days, standard across company, excluding national holidays)

 

its just by going to this new proposed rate , i will make 28-30% more money over the year

 

considering above--can i still be legally in H1B on hourly and will not get in to restarting GC process ( priorty date 2010)

Please let me know.

If it cannot happen, I will stay in status quo

 

And why can't your yearly salary not be increased by the same amount?

It still does not make any sense.

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