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Troubles with Employer, H1B visa (221g) and transfer

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  • Troubles with Employer, H1B visa (221g) and transfer

    Hey Guys,

    I am hoping to get some directions as looks like I'm in a big fix right now...

    Situation 1
    So in Dec 2011, i decided to visit India with my 3 year H1b visa expired and extension already approved in the US. Obviously i had to go for re-stamping of visa. During which, just like most of H1b people facing issues lately, i was given 221g form before I could be given new visa. I submitted the documents, and in beginning of March I was issued new H1b visa stamp expiring in 2014 September. SO CURRENTLY I HAVE VALID EXTENSION AND VALID H1B VISA STAMP EXPIRING IN 2014. However the last pay stub have right now is dated January 15th 2012. And of course no pay for 2 months as I was given only one month paid leave.

    Situation 2
    My employer was first supportive of me visiting India but after I received 221g his attitude suddenly changed. He took very long time to send documents and in the mean time started telling me that his company might not have job for me when I get back. I kept patience and once I received visa he again started telling me that I will be assigned similar responsibilities as before and even asked me to start working on official assignments while in India. I am as of now scheduled to fly back on 15th March, 2012 with my wife (H4) and 7 months old son (US Passport holder with Indian visa expiring on 19th March 2012). But suddenly yesterday I received email from my employer saying "we do not have any assignments, where we will be able to place you. Having said that, please give it a rethought if you want to bring your family with you or want to call them, once you have a confirmed employment"

    Situation 3
    Me and my wife, we both also hold visitor's visa expiring 2017 and I can use it to enter US anytime as per what I found through research on this forum.

    With that said, I have following questions and really hoping to get some directions as what could be the best of my and my family's interest.

    1. Now that my employer has send me an email saying they are not having any assignments for me (however he has not mentioned anything about him terminating me from the job or even given any termination letter for that matter), does this make me out of status? Or he has to inform USCIS of my termination after giving me termination notice?

    2. Am I still considered to be on employer's payroll? And my employer is obligated to pay my salary?

    3. If I am out of status, will it be advisable to travel back on visitor's visa? Find another job, transfer H1 visa to another employer and change status from Visitor's to H1?

    4. If i find another employer and apply for H1 transfer, will there be any issues in transferring as I do not have any recent paystubs?

    5. My new visa stamp was issued on 29th February 2012. Should I request my employer to run my payroll for month of March so that I can use that pay stub for H1 transfer to another employer?


    Any suggestions/recommendations will be greatly appreciated.

    Thanks
    Monty
    Last edited by montyp80; 03-13-2012, 03:35 AM.

  • #2
    Originally posted by montyp80 View Post
    Hey Guys,


    1. Now that my employer has send me an email saying they are not having any assignments for me (however he has not mentioned anything about him terminating me from the job or even given any termination letter for that matter), does this make me out of status? Or he has to inform USCIS of my termination after giving me termination notice?

    You only have status when you are in the US. If they have indicated that you can travel to US, you can travel to US. Of course, there is no benching allowed while in H1B status, so if they cannot find you a project and cannot pay you, you will be out of status.

    2. Am I still considered to be on employer's payroll? And my employer is obligated to pay my salary?

    Yes, while you are in the US in H1 status.

    3. If I am out of status, will it be advisable to travel back on visitor's visa? Find another job, transfer H1 visa to another employer and change status from Visitor's to H1?

    Yes, you can do that. However, you may be questioned about exactly what you plan to do in Visitor status at port of entry. Prepare truthful and convincing answers to that. Also, you cannot begin working until change of status to H1 gets approved.

    4. If i find another employer and apply for H1 transfer, will there be any issues in transferring as I do not have any recent paystubs?

    No, you only need to maintain status while in the US.

    5. My new visa stamp was issued on 29th February 2012. Should I request my employer to run my payroll for month of March so that I can use that pay stub for H1 transfer to another employer?

    That is not necessary.



    Any suggestions/recommendations will be greatly appreciated.

    Thanks
    Monty
    See above.
    This is my opinion and not legal advice.

    Comment


    • #3
      Originally posted by kabkaba View Post
      See above.
      Thanks a lot for the reply kabkaba.

      However, are you sure about not needing the pay stub for H1 transfer to other employer? I read at few places that you need recent paystubs to transfer to other employer.

      Comment


      • #4
        For a successful H1B transfer, you only need payslips and W2 for the period you stayed in U.S in H1B (or L1) status. If you are not convinced with the answers, then you should consult an immigration attorney.

        Originally posted by montyp80 View Post
        Thanks a lot for the reply kabkaba.

        However, are you sure about not needing the pay stub for H1 transfer to other employer? I read at few places that you need recent paystubs to transfer to other employer.
        Not a legal advice. Use of this information is strictly at your own risk.

        Comment

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