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  • H1B Stamping: Gap between 2 jobs

    Hi All,

    I did an H1 transfer from Company A to Company B early this year. My last day with Company A was 11-Apr-2008. To avoid paying me, my consultant company B didn't add me to their payroll till I got a new project and which I got on 09-Jun-2008. So there is almost a 2 months gap between my two jobs.

    I've booked my H1B stamping appointment at the US Consulate in Ottawa, Canada for 4-Dec-2008 but am not sure if this would be an issue. Has anyone else had the same problem? WOuld be great if someone could give me some advice on this. What should I say in case the VO asks about the job gap?

    Any help in this case is greatly appreciated.

    regards,
    Arun.

  • #2
    Benching without pay is illegal. You were out of status in the gap period and will cause issues, if not now, later on. Complain to DOL on a WH4 form and protect your status as well as your rights.

    LABOR CONDITION APPLICATION REQUIREMENT ON EMPLOYERS: Section 212(n) of the Act provides that a prospective employer of an H-1B alien must file a Labor Condition Application (LCA) with the Department of Labor (DOL). Section 212(n) of the Act states that no alien may be admitted to the U.S. or otherwise provided H-1B nonimmigrant status unless the prospective employer has filed with DOL an application stating that the employer will:
    • pay the alien the actual wage level paid by the employer to all other individuals with similar qualifications and experience for the specific employment in question or the prevailing wage level for the occupation classification in the area of intended employment, whichever is greater, based on the best information available at the time of filing the application; and
    • provide working conditions for the prospective H-1B nonimmigrant that will not adversely affect the working conditions of workers similarly employed.
    The LCA wage determination relates directly to the geographical area or areas where the alien is slated to work. A prospective H-1B employer filing the LCA with the DOL is limited to listing only two geographical areas (worksites) per LCA. If a prospective employer intends to employ an H-1B worker in more than two locations (except short-term placements meeting the specified conditions under 20 C.F.R. 655.735), he or she must file additional LCAs to cover the other locations. Likewise, if an H-1B employer who has already filed an I-129 petition with USCIS intends to employ the alien in additional locations (beyond those listed on the original LCA), he or she must file additional LCA(s) with DOL, as appropriate.
    3
    FILING FEES ASSOCIATED WITH H-1B PETITIONS: There are several different fees associated with filing a petition for an H-1B nonimmigrant worker:
    • The base filing fee for the I-129 petition of $3203
    • The additional fee required by the H-1B Visa Reform Act of 20044 of:
    o $1,500 for businesses with 26 or more full-time employees and
    o $750 for businesses with 25 or fewer full-time employees
    In each instance, the number of full-time employees includes employees of any U.S. affiliate or subsidiary of the petitioning employer.
    • A $500 Fraud Prevention and Detection Fee (also authorized by the H-1B Reform Act of 2004), which must be paid by:
    o most H-1B employers seeking a worker’s initial grant of H-1B nonimmigrant status and
    o any employer seeking to hire an existing H-1B worker currently employed by another employer.
    • Additionally, employers may choose to pay an extra $1,000 premium processing fee if they seek expedited adjudication.
    Section 212(n)(2)(C)(vi)(II) of the Act as well as DOL regulations at 20 CFR 655.731(c)(9) and (10) prohibit H-1B petitioners from passing H-1B “ACWIA” filing fees (pursuant to section 214(c)(9) of the Act) on to the beneficiary.
    Furthermore, when filing the LCA, the prospective employer declares that he or she will comply with the Labor Condition Statements as set forth in the cover pages of that form and in the DOL regulations at 20 CFR, Part 655, Subparts H and I.
    Last edited by txh1b; 10-28-2008, 08:15 PM.

    I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

    Comment


    • #3
      Thanks for the reply, txh1b!

      My consultants have been paying me promptly for the last six months and have been quite nice to me. It was only the first 2 months that I didn't get paid as I didn't have a project.

      What do you think would it be safe if I don't tell the VO about this 2 month gap and don't put the same in the DS-157?

      regards,
      Arun.

      Comment


      • #4
        No lying on the visa forms.

        The consulting companies HAVE TO pay you, project or not. It is not an excuse considering the number of problems one will face in the future.

        Who loses? YOU!! It is your choice as it is your status at risk. Read the link I posted on the thread below regarding how they are cracking down on such employers and people like you will be the sufferers if you say "only 2 months".


        I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

        Comment


        • #5
          Thanks txh1b!

          Comment


          • #6
            re: gap betwen project

            hey Arun, did you get your visa stamped ?

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