Filing WH4 against employer for not paying on bench

[generalworker]

Hi,

 

I am with a desi consulting employer that has stopped paying from Nov 2015 because I have been on bench. I am looking for a job outside too, but as I don't have recent paystubs, it will be problem to transfer the H1B once I get an offer. So I am thinking of filing WH4 (reporting to DOL). But I can't do that unless I have an offer. So I have few specific questions with respect to this:-

 

 

#1. a) Once I file WH4, exactly what proof do I need to be eligible for H1B transfer without paystub?

     b) How soon can I get that proof? Is the the receipt that I get through online WH4 submission that I need to provide?

     c) Can the new company, releasing me an offer , file H1B through Premimum processing if my WH4 is in process?

 

#2. My I140 is approved through my present employer 3 years back (the priority date is 3 years back). After filing WH4, if the employer is blacklisted as a result of this WH4, will it also affected the status of my approved I140? I mean will my priority date be affected? I know that priority date is portable once I140 is approved, but there is also an exception I read somewhere about saying that it may not be portable if the company is blacklisted. I don't want to lose my priority date.

 

#3. From Jan 2015 to Nov 2015 I have already received more "per annum" money in than in my LCA. Can the employer justify not paying on bench using this argument? 

 

#4. I left travelled outside US (to India) for a month in December while on bench (just to visit). So should I still receive paystub for this as per DOL regulations?

 

Thanks

[jairichi]

You do not need an offer to file WH4.

[generalworker]

legally I don't. But then if I am jumping off a ship I need another ship to get into. Because my employer will easily be able to guess that it is me who  reported this to DOL. Moreover, the employer will also revoke my I140 , H1B etc. So getting into another company after this will be difficult if not impossible. So to be safe I am waiting for an offer before I can do this.

[JoeF]

The WH4 receipt is good enough for filing a transfer.

[generalworker]

My main question was -- if the employer gets blacklisted as a result of WH4 filing, will my priority date be cancelled?

[rohang]

most probably your PD will be gone, as employer is not in position to pay so I140 will considered to be fraud.

[JoeF]

My main question was -- if the employer gets blacklisted as a result of WH4 filing, will my priority date be cancelled?

 

Blacklisted or not, the I-140 would not get approved anyway, since the employer obviously doesn't have the ability to pay your salary. So the I-140 would be considered fraudulent.

This is independent of you filing a WH4 or not. USCIS wants to see your tax returns, so they will find out that the employer can't pay anyway.

Filing a WH4 is helping you getting your money and being able to find another employer.

[generalworker]

but if I file WH4 , won't DOL also question me as to why I have not left the  country by now? So I can't say then that I was "waiting" for another offer. So does it mean I should leave the country immediately and then file the complaint with DOL? Isn't there any way out than leaving the country? 

[JoeF]

No, DOL doesn't care about that. Overstaying would be a concern to USCIS, not DOL.

[generalworker]

In this case, please answer in case of this scenario:-

 

Step #1. In case -- I leave the country (US) and go to India immediately (and my current visa is valid for 4 more months).

 

Step #2. In India some other company offers me job in India and is willing to hire me and send me to US on some project.

 

So in this case, will this new company be able to file my petition without needing salary slips? Because I have not completed 6 years on my H1B yet (two more years are remaining). So it means that in next 2 years if some company hires me in India and wants to send me back to US on some project, they can file H1B petition (without being subjected to H1B cap system) without needing latest salary slips right ? (provided that I am in India for 2-3 months, because generally they ask for 3 months salary slips for H1B filing) And what if this same company gets some project after few months, will they even be able to file H1B petition without having latest salary slips ?

[JoeF]

If you have concerns with an overstay, I suggest you consult with a good immigration lawyer.

 

As far as missing salary slips are concerned, having filed a WH4 can excuse that.

[generalworker]

The back wages that the employer is supposed to pay is from the date of benching (when the salary stopped) till the date of termination as indicated in official communication to me? Or is it till the date DHS (Department of Homeland Security) is informed about end of the employment. 

 

Taking a hypothetical example -- An employee comes on bench on 31-Dec-2016 and from that point his salary stopped. Then he is terminated officially (i.e. an email is sent to him) on 1-Feb-2017. But the DHS is informed and asked to revoke the H1B petition on 1-June-2017 (Considering that the visa itself is valid till 15-May-2017). 

 

So in this example -- does the employer owe from 31-Dec-2016 to 1-Feb-2017 or from 31-Dec-2016 to 1-June-2017?

The reason I  am specifically asking this is that -- I have read that as per DOL rules an employment is formally considered as 'terminated' when an employer informs DHS about the termination. So I was wondering, what if the employer does this several months after terminating an employee by sending an email.

 

[JoeF]

DOL does not consider the employer-employee relationship properly ended until USCIS is informed that the person on H1 no longer works for the company.

There have been lawsuits about this, and in one case, a company was ordered to pay 3 years of back pay, because the company did not inform USCIS.

 

[pontevecchio]

Till the H1 is officially revoked by the employer by informing USCIS, his responsibility to pay you remains.

[generalworker]

and the money the employer would owe would be the salary specified in the LCA right -- not the actual salary the employee was being paid?

[JoeF]

Not absolutely sure about that. But in the lawsuit I mentioned, interest was added.