H1B stamping in New Delhi.. Please help

[neha1312]

Hello Gurus,

Please help me!. I got my H1B visa approved in Oct 2009. In my petition my employer showed inhouse projects. I am planning to go for H1b visa stamping in november 2009. But as my payroll didnt run till now, I donot have paystubs at this moment, but my employer is issuing me a leave letter for this period. Does anybody think this will be a problem and I will get 221G?

Please help me!!

Thanks in advance
H1baspirant

[shervin143]

You need to have the pay stubs from Oct 1st. Otherwise you are out of status. When you are in H1B, you need to get paid, irrespective of whether you are in a project or not.

[neha1312]

H1b stamping

The leave letter that I will be getting from my employer does not suffice?

[shervin143]

You should have a proper reason for leave without pay and documents (medical report etc) to support your claim. Legally you should get paid when you are in H1B, irrespective of whether you are in a project or not. Leave without pay for no project (bench) is not permitted. Probably the below link should help.

Q : Must an H-1B alien be working at all times?


As long as the employer/employee relationship exists, an H-1B alien is still in status. An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

[neha1312]

H1b stamping

Thanks a lot for the quick repply.
Just 1 question. If I decide to stay here now, and go for stamping next year, I will probably have paystubs to show, but will they ask me last year's W2? and can it affect my stamping?

[shervin143]

It dependes on the VO. Some VO will ask for W2 and some don't. Go through the below links when you have time.

https://www.immihelp.com/h1-visa-holder-rights/

https://www.immihelp.com/h1-visa-holder-responsibilities/

https://www.immihelp.com/h1b-visa-em...int-procedure/

Thanks a lot for the quick repply.
Just 1 question. If I decide to stay here now, and go for stamping next year, I will probably have paystubs to show, but will they ask me last year's W2? and can it affect my stamping?

[simplyshree]

Hey Shervin,

I went into the link you mentioned and there it is quoted.
An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

So how long can an H1B be on vacation? Does he have to be paid during that period?

Thanks,
Shree

[shervin143]

Vacation is usually when you go out of the country. There is no status when you leave U.S and you can be on vacation without pay when you are out of the country.

Hey Shervin,

I went into the link you mentioned and there it is quoted.
An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.

So how long can an H1B be on vacation? Does he have to be paid during that period?

Thanks,
Shree

[needassist_h1b]

hello Neha
Here is my input:

The Department of Homeland Security (formerly the Immigration and Naturalization Service) defines “hired” as “the actual commencement of employment of an employee for wages or other remuneration. The employee must complete Section 1 or the I-9 Form by the date of hire (i.e., no later than the date on which employment services start).

Source:

http://www1.umn.edu/ohr/payroll/i9regs/index.html

If we go by this statement, technically your employment begins on the day I-9 is filed. Before that you only have an employment authorization through H1B I-797A and I-94 docs. I would analyse it as employer-employee relationship begins on this day. Any email exchanges before this day really substantiates this relationship to me personally appears as a questionable...

And if there is no employer-employee relationship, how can the employer even have the authority to sanction a leave of absence. This is irrespective of the fact how many days one can be on leave. This is my personal analysis.

But if employer has the authority to sanction leave before the date of I-9 filing, then here is something you might like to read:

"Circumstances where wages NEED NOT be paid":
If an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).

Payment need not be made if there has been a bona fide termination of the employment relationship. INS regulations require the employer to notify the INS that the employment relationship has been terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and require the employer to provide the employee with payment for transportation home under certain circumstances (8 CFR 214.2(h)(4)(iii)(E)).

Source:

http://www.dol.gov/dol/allcfr/title_20/Part_655/20CFR655.731.htm

In your case, if you take the burden of not joining the employer until Nov 30 (as you have 60 days to join the employer), visa stamping may be possible without problems. But it may be better to give a little time before you go for stamping like a month or two after reaching home. This will rule out paystub and W-2 issue but you might just be asked for some kind of evidence that there is still an opening with the employer for you like letter from client or the employer himself and that would be easy to produce than these leave of absence routes and paystub issues. You still have 17 days to leave USA and protect your future immigration benefits.

Hope that helps.

[neha1312]

W2s

Hi all,
The info provided is very helpful. But because of complexity of the nature of problem, if I choose to just stay here and find a job, then in that case I will need to go for stamping after 2009. The question here is if I go after the year 2009 when I have paystubs for 3 mnths atleast, then They might ask for W2. ie actually the tax return statement for 2009. Note that I had worked in US on L1 visa till 12 January 2009. ie only 12 days. So in any case I will file the tax return with my husband as a joined application. So my question here is Can I show them this joint tax return at the time of stamping after the year 2009(as W2)?

[shervin143]

Yes, you can.

Can I show them this joint tax return at the time of stamping after the year 2009(as W2)?

[needassist_h1b]

From your last post what I can conclude is:

1. Your total pay period from Jan 01 till Sept 30 = 12 days (L visa classification)
2. Your total pay period from Oct 01 till today = NIL (H visa classification) assuming that you were approved for COS.

At visa interview, they basically want to determine if you ever violated your status or were illegally present. If you remain in the USA beyond Nov 30 without your payroll started, you will be in violation of status in all probabilites because that is the last day up to which you can claim that you didnot join the employer. So in any case, you should leave US before Nov 30 if there is no hope of your payroll getting started on Dec 01 by your petitioner.

Options:
1. Leave USA before Nov 30 and come back on your spouse dependant visa and avert this non productive H1B status.

2. And if you intend to come back on your H1B visa, then you might need to wait in home country for sometime and come back on H1 visa after your current employer finds work for you or in the meanwhile you may be able to find another petitioner from home country but the chances of H1B transfer appear bleak from here now, since you are already in the mid of Nov.

In either case, leaving US before Nov 30 is recommended.

3. If you are absolutely sure that your current employer will have project for you in the beginning of new year and you want to take a chance without payroll;

a) Asssuming that paycheck starts in Feb 2010 and you go for stamping in May 2010 and VO asks you like for how long have you been working for your current employer, this will raise a red flag (if you say Oct 01, 2009, and he asks for W-2 from your employer in particular or say he asks for a paystub for a particular month in 2009 after Oct 01)

It is always better to avoid out of status gaps as much as possible, even though visa stamping skims though, future GC processing opens up every phase.

I would still advice to leave US before Nov 30 and opt for the most feasible option from above, according to your personal circumstances.

[neha1312]

Current situation

Hi,

suppose I chose to leave on 20 Nove '09 as suggested by you.
Now Please note that in my petition it is shown that I will be working on internal project of my employer and not as consultant, and also that I dont want to travel back on dependent visa.
Now the thing is if I show that I didnt join my employer who petitioned for me then what do I say to VO?

Can I say that my internal project is starting from Dec 15'09 or any later date and I left the country to save my status and meanwhile get stamping done?

Is this safe to say if I dont have paystubs but have leave lettre with me?

Thanks in advance.