Employer asked to not work for a few months after my wife came to the US with H1B

[cocreateguid]

My wife got her H-1B and came to the US this week. Her employer told her they want her to stay home for a few months until they decide when they will have her started. Obviously during these "few months", she will not be paid.

Question: is this legal? Does the employer have the right to hold a H-1B employee home unpaid? What would happen if we file for tax return in 2014 and my wife does not even get a W-2 form?

Thanks!

[raghvi]

My wife got her H-1B and came to the US this week. Her employer told her they want her to stay home for a few months until they decide when they will have her started. Obviously during these "few months", she will not be paid.

Question: is this legal? Does the employer have the right to hold a H-1B employee home unpaid? What would happen if we file for tax return in 2014 and my wife does not even get a W-2 form?

Thanks!

If your spouse entered US on H1 on the employer's petition the employer must pay irrespective they have work or not. From your spouse's point of view too she would be out of status if she is not getting paid. You can complain to DOL.

This is my opinion not legal advice.

[yellowpage]

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[cocreateguid]

If your spouse entered US on H1 on the employer's petition the employer must pay irrespective they have work or not. From your spouse's point of view too she would be out of status if she is not getting paid. You can complain to DOL.

This is my opinion not legal advice.

Thank you, raghvi.

Now the employer proposed to put her on un-paid vacation through the end of the year, and then (possibly) get her on-board and start paying her. Is this legal? If my wife decides to quit for not being paid, leave the US and get a H-4 visa (I am in H-1B status so she is eligible for H4), I am pretty sure the visa officer will ask her why she gives up the H-1B status. If she tells the visa officer the truth, what is going to happen? Will her be denied of the H4 visa? Will her employer be put on the blacklist for not paying H1B employees?

Even the "un-paid vacation" tactic is legal, we will have her employer put this in writing so in the future if things get nasty, we have something useful for the fight.

Thanks!

[raghvi]

Un-paid vacation is only allowed for genuine reasons such as medical conditions , caring for an ill relative etc. What the employer is doing is not right. You should complain to the DOL.

As for H4, technically your spouse is out of status from day she entered US till she leaves US as she doesn't have paystubs to prove otherwise. Though there is very less chances that the officer will question this out of status as H4 is primarily about seeing the primary H1's job and ability to support a dependent and H4 being able to prove the relationship with H1. Her H1 in passport will most likely get cancelled, but she can still try to move to another company later on.

This is my opinion not legal advice.

[cocreateguid]

Un-paid vacation is only allowed for genuine reasons such as medical conditions , caring for an ill relative etc. What the employer is doing is not right. You should complain to the DOL.

As for H4, technically your spouse is out of status from day she entered US till she leaves US as she doesn't have paystubs to prove otherwise. Though there is very less chances that the officer will question this out of status as H4 is primarily about seeing the primary H1's job and ability to support a dependent and H4 being able to prove the relationship with H1. Her H1 in passport will most likely get cancelled, but she can still try to move to another company later on.

This is my opinion not legal advice.

Thank you!

[cocreateguid]

One more question - if the employer terminates her employment now, can she stay in the US while she's filing for CoS to become an H4?

[raghvi]

If employer terminates the employment they must pay for the return ticket to home country.

She wouldnt be able to move to H4 as she is out of status for lack of pay stubs.

This is my opinion not legal advice.