H1B Out of status; Determine start date to calculate 180 days ?

[moresolve]

Hi,

 

 

Rule says that - H1B worker falls out of status if not get paid by employer. Now if employee leave USA after 180 days and before 365 days and goes back to home country then he/she is not allowed to enter in USA for 3 years and if employee leave USA after 365 days and goes back to home country then he/she is not allowed to enter USA for 10 years.

 

When I entered USA I applied for SSN, but I received it after few months due to mistake of SSA officials. So lets say I entered USA on date "A" and I received SSN on date "B".

 

Now from when we need to calculate these 180 days in my case? Date "A" or Date "B" ?

 

As per my understanding without SSN employee can not receive wages.. Correct me if I am wrong. ?

 

 

Thanks

[JoeF]

The time towards the ban starts when the I-94 expires.

[jairichi]

From the day you report to employer and not being paid. On H1B you can be paid without an SSN (if SSN application is filed). Employer knows this.

[moresolve]

The time towards the ban starts when the I-94 expires.

 

Scenario : Irrespective of I-94 expiry date If in the case of  employee not getting paid by employer and because of this reason employee falls out of H1B status. 

 

When I entered USA I applied for SSN, but I received it after few months due to mistake of SSA officials. So lets say entered USA on date "A" and I received SSN on date "B".

 

Now from when we need to calculate these 180 days in my case? Date "A" or Date "B" ?

 

Thanks

[moresolve]

From the day you report to employer and not being paid. On H1B you can be paid without an SSN (if SSN application is filed). Employer knows this.

 

Thanks. 

 

Employee has not reported to employer by physically going to address mentioned in LCA. but throughout employee's USA stay employer was aware and also appointed staff for getting the project / work (Resume submission , interviews with end clients etc. ). Employee not getting paid and was on bench (non productive time).

 

Now in Fact Sheet #62I: Must an H-1B employer pay for nonproductive time? ....Link: http://www.dol.gov/w...62/whdfs62I.pdf 

There  it is mentioned that irrespective of employee entered into employment or not..but if employee has entered in USA on H1B then he/she must get paid by employer.

 

Question:

 

1 . So please let me know by not immigrating at LCA mentioned address has employee violated immigration rules in this scenario ??

 

2 . And as mentioned what should be employee's start date to calculate 180 days of illegal status (As employee not getting paid by employer) ? From USA entry date or SSN received date ? 

[JoeF]

The time towards the ban starts with I-94 expiration. That's an overstay.

But, you are out of status when you are not getting paid on H1.

Not having an SSN yet is no excuse for not getting paid. Modern payroll systems can handle such situations.

If your employer didn't pay you, file a complaint with DOL on form WH4. The DOL will make the employer pay you.

And find a better employer, one who knows the laws.

[moresolve]

The time towards the ban starts with I-94 expiration. That's an overstay.

But, you are out of status when you are not getting paid on H1.

Not having an SSN yet is no excuse for not getting paid. Modern payroll systems can handle such situations.

If your employer didn't pay you, file a complaint with DOL on form WH4. The DOL will make the employer pay you.

And find a better employer, one who knows the laws.

 

Thanks a lot.....  I got answer for my 2nd question about SSN. 

 

My another question was -

 

has employee violated immigration rules in this scenario (Mentioned in previous post) by not immigrating at LCA mentioned address ??

If yes then, in DOL investigation what action can be taken against employee ?

[JoeF]

That has been answered in another thread.

Repeating the question doesn't change the answer.

[jairichi]

Thanks a lot..... I got answer for my 2nd question about SSN.

My another question was -

has employee violated immigration rules in this scenario (Mentioned in previous post) by not immigrating at LCA mentioned address ??

If yes then, in DOL investigation what action can be taken against employee ?

The answer is no if you had reported to employer.

[moresolve]

That has been answered in another thread.

Repeating the question doesn't change the answer.

I appreciate for your help.

 

I understood that H1B employee can have POE at any location throughout USA. But my worry was ... as LCA is legal document and if in DOL investigation it is found that employee did not went to employer's office (address mentioned in LCA) for reporting and hence broke the immigration rules also, then what repercussion employee has to suffer ? DOL may also go into details to investigate what was employee's intentions to stay at other location? .. (Though I know, employee is entitled to get salary and DOL will make employer to pay it to employee).

 

But if employee has serious risk in such scenario like heavy fine or permanent ban to enter in USA then DOL complaint may not be good option.