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H1B issues

Got Pay Stubs? Transferring H1B without Pay Stubs

By: Hasan Abdullah, Esq.

An all too common question that immigration law attorneys dealing with H1B cases encounter is whether it is possible for an H1B worker to port his or her employment to a new company if this worker does not have recent pay stubs.

Consider the example of R.S. Singh. After Singh graduated with distinction from a reputable Indian university, he was offered a job by a US consulting firm, YKK Infosys, promising to pay him $60,000 a year as a systems analyst. YKK filed his H1B petition with the US Citizenship and Immigration Service, and the petition got approved. Shortly thereafter, Singh obtain his visa and gained admission to the US.

As soon as Singh arrived, willing and able to work, the employer put Singh on “bench” without pay. He was told that he would only be paid if he was placed on a project. The employer took some initiative to market him to potential client companies with no success. A few months later, through Singh’s own job-hunting efforts, he found a project and was finally put to work… for 4 months. During those 4 months of work, Singh worked 50-60 hours a week, produced excellent quality work, but was paid a paltry $2000 a month – well below the prevailing wage of a systems analyst. Of course, YKK was skimming their share of several thousands of dollars from the client. Once again, Singh would have to look for work while his employer paid him nothing.

As bad as the above scenario seems, in some cases, it has been observed that companies run an audacious scheme in which they charge a thousand dollars or more to the foreign worker just to file the H1B, and if approved, they charge several thousand more dollars to file for the visa to bring them in. Returning to our example, months later, Singh finally found a legitimate employer who offered to port his H1B employment. The new employer’s immigration attorney requested that Singh provide his pay stubs for the past three months to show proof that he was maintaining his H1B status.

Singh replied that he had none, and was worried that he was out of status as a result.Unfortunately, many H1B workers do not realize they have a lot of power with the law being on their side, and quietly endure months of hardship. They fear that if they complain too much, their employer will just notify USCIS that the position is terminated, and force the worker to return to their home country. In reality, as an H1B worker, Singh has the opportunity to file a complaint to the Department of Labor to obtain unpaid wages, and can use this complaint in lieu of pay stubs. This gives any illegally benched employee a lot of leverage against his unscrupulous employer. Consider the following liabilities that YKK would be potentially subjected to:

General Penalties: Failure to comply with all LCA requirements may result in fines from $1,000 to $35,000 per violation, and debarment from all future approvals of visas or Labor Certifications for at least one year.

Back Pay: In cases where the employer does not pay prevailing wage, it can be ordered to pay backpay to make up for the deficiency. The obligation to pay the employee may not be properly terminated unless the employer tells USCIS that the relationship has been terminated so that USCIS may cancel the I-129 petition, and the employer must provided the employee payment to fly back home. Case law precedents dictate that even in cases where the employer notified the employee, but not USCIS of the termination, the H1B remained valid until the end of the LCA period, and the former employee is able to collect back pay with interest. In one case, where the employer was found to have violated H1B/LCA regulations on numerous occasions, the DOL Wage and Hour division successfully pursued a backpay award of over $980,000.

Employers may claim the employee acted in bad faith as well, but still, the employer was held responsible. Even in a case where the employee misrepresented his credentials, given the employer a reason to terminated him, because the employer did not notify USCIS, the clock requiring the employer to cover backpay continued to run. Note that damages accrue from the time the employee makes him or herself available for work. Even if there is no work available, the employer may not use that as an excuse not to pay the employee.

Other Legal Damages:In addition to the DOL requiring the employer to pay fines and back pay for its violations, an aggrieved H1B worker can, for example, seek a claim in federal court based on RICO violations. Potentially, the employer could be required to pay triple the value of unpaid wages (“treble damages”) in addition to attorney fees.

Conclusion: In reality, the majority of consulting companies are legitimate business operations. The above liabilities should be considered a warning to companies who think they are being fair to employees who they are no longer able to support. Because for every situation like Singh’s, there is a situation where an employer pays their H1B employee well, but unfortunately has to terminate the employment prematurely because of a sudden downturn. Following the book, the employer informs the employee that it will be terminating the job and paying for the employee’s airfare to return home. But then the employee might plead with the employer to “park” their H1B, and offer to pay the employer to run pay roll because that employee would rather not return home. In such a case, the employer is obviously running a risk in trusting that the employee will not later report them for illegal benching. The message is that H1B employees should recognize the fact that they have rights, and honest and dishonest H1B employers alike should realize that they have to be very careful not to violate these rights.

Disclaimer: This article is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and the website publisher. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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1. Latest Articles & Updates

2. Choosing the L1A or L1B to enter the United States.

The United States has created an immigration solution for companies with subsidiaries, affiliates, and branches around the world. The L-1 classification allows foreign nationals employed outside of the U.S. to enter the U.S. and work for a qualifying subsidiary, affiliate, or etc. There are two types of L-1 classifications available: (1) L-1A, for individuals employed in a managerial or executive capacity, and (2) L-1B, for individuals with specialized knowledge capacity.

Today, transnational corporation commonly have numerous subsidiaries, affiliates, and branches throughout the world. Subsequently, companies may need to temporarily transfer a high-ranking or uniquely talented employee to an affiliate in another country to handle some specialized business.

Generally, the USCIS initially grants an individual L-1 status for three years. However, an individual’s L-1 status will initially last only one year if he or she is entering the U.S. to work for a start-up company. Once in L-1 status, an individual can extend their status after the initial period expires. Individuals in L-1A status can extend their status for up to seven years, while individuals in L-1B status can extend their status up to five years. Note that since all employees are hired on an “at-will” basis, the L-1 U.S. employer is not required to retain the employee for the entire seven or five year period. Finally, if the employer/employee relationship endures for the entire L-1 period, the individual must spend one full year outside of the U.S. before her or she is eligible to apply for a new period of L-1 status.

Once granted L-1 status, an individual’s spouse and children are eligible for L-2 derivative status. Individuals in L-2 status are not authorized to work unless they apply and receive an employment authorization card (EAD). However, the USCIS allows individuals to attend a U.S. school without changing his or her immigration status.

Requirements

An L-1 candidate must provide the USCIS with (1) proof of employment with a qualifying U.S. company; (2) proof that the L-1 employer generates sufficient business to employ the candidate; and (3) evidence that the candidate will be engaged in a “managerial or executive capacity” or “specialized knowledge capacity.” These three requirements are explored in further detail below.

Proof of Employment with a Qualifying Company

The L-1 candidate must be employed with the petitioning company’s affiliate, parent, or subsidiary for a continuous period of one-year within the three-years prior to filing the petition or entry into the U.S. This employment must have been in either a managerial/executive capacity or specialized knowledge capacity.

The candidate then must submit the required supporting documentation about the petitioning employer:

  • * Evidence that the company abroad and the petitioning company are related. The critical issue is whether either of the companies exercise control over the other company. This is a relatively flexible requirement, as even a 50/50 joint venture qualifies;
  • * Detailed written description of the petitioning company’s business, including its history, facilities, resources, and organization;
  • * Description of the company’s employees along including job titles and duties;
  • * Evidence that the company will continue to do business abroad during the candidate’s U.S. employment; and
  • * Documents evidencing the company’s corporate organization and long-term financial viability.

Doing Business in the United States

The L-1 candidate must also include evidence that the petitioning company is engaged in sufficient business to employ the candidate, including:

  • * Detailed description of the company’s U.S business, including history, number of employees, locations, and any marketing materials. This is especially important if the company is a start up business;
  • * Corporate documents such as financial statements, incorporation documents, and SEC reports;
  • * Evidence of assets such as corporate bank account statements;
  • * Copies of lease or purchase options for buildings or spaces;
  • * Detailed description of the company’s employees, including resumes, job titles, and job offer letters; and
  • * Name and title of officer who will sign forms.

Managerial or Specialized Knowledge Capacity

After the candidate establishes proof of employment with a qualifying U.S. company, he or she must submit documentation that the candidate qualifies for either an L-1A or L-1B classification.

The candidate qualifies for an L-1A classification if (1) he or she is employed in a “managerial” capacity, meaning that the candidate primarily supervises or controls the company’s day-to-day operations, or (2) he or she is employed in an “executive” capacity, meaning that the candidate makes the company’s overall business and policy decisions.

An L-1B classification may be appropriate if the candidate possesses “specialized knowledge” essential to the company’s business affairs. This is a relatively broad classification as it can include specialized knowledge of a company’s machinery or operations, or if the individual has expert knowledge on a a company’s processes and organization.

Additionally, L-1A and L-1B candidates may also include the following supporting documentation:

  • * Evidence of higher education, including degrees, diplomas, transcripts;
  • * Detailed resume evidencing the candidate’s continuous employment with the company for one-year within the three-years preceding the filing of the petition;
  • * Evidence that the candidate was employed in either a managerial/executive or specialized knowledge capacity abroad, and that the candidate will continue this employment in the U.S.;
  • * The candidate’s salary/compensation abroad and in the U.S.;
  • * Corporate organizational charts detailing where the candidate is employed in the corporate hierarchy;
  • * Copies of passports and any other supporting documentation.

Filing Procedures

To apply for L-1 status, the candidate must file an I-129 form with the USCIS, along with the supporting documentation listed above. Note that individuals employed outside of the U.S. are advised to attain an L-1 visa before her or she begins employment with a U.S. affiliate. This is because although an individual may be granted L-1 status, that does not necessarily mean an individual has an L-1 visa. Therefore, though the individual may be allowed to stay in the U.S., he or she cannot travel until they get a visa at the appropriate consulate. To avoid any such inconveniences or legal problems, individuals should obtain a visa before beginning employment in the U.S. This is why it is recommended to hire a good lawyer to assist you in the process. The Shah Peerally Law Group PC has been providing L1A and L1B immigration solutions for many years, feel free to contact us at 510 742 5887.

The preparation of an L1 visa or any kind of visas requires a good understanding of immigration laws and regulations. There are other important issues not covered in this article regarding L1 visas such as the petition to obtain a work permit for L2 dependents and L1 blankets. One should consult a licensed and experienced immigration lawyer before moving forward with any immigration case(s)

If you have any questions or concerns, you should contact an experienced immigration attorney for further details. Our office has prepared many similar applications, feel free to contact us on (510) 742 5887, should you need any additional information.



The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.

3. Radio Show Selected Questions 2

By: Shah Peerally Esq.

1) My wife recently got H1b on October and basically for two months she didn’t have a job and November last week she got a job, so I just want to know how if she doesn’t have paystubs for November and October is that ok or how is that?

- Ok did she transfer?

- No, that was a finished h1b and early the project was dead and then later on it was scraped out.

- Ok the first month of the H1b, there’s no real requirement to have what we call a paystub, but after that there might be a problem at a later stage but it’s not about the monthly paychecks, but what they are looking at meeting of the requirements of the total what they are suppose to pay up, for example, let’s say they’re going to pay $100,000 at the end of the year it has to show $100,000, so the reasons they want the check stubs to show that you maintained status in this case it may be a problem but one way to reset is that leave the country and come back, its only one month that they need the paycheck stubs. Later on, when you apply for GC they can come back and question the maintenance of status.

2) My GC is filed under EB category and I been waiting for last 6 years and I’m about to make a decision to do a job change to a new company what would you recommend to file an new H1 transfer or should I go on EAD?

- Well you don’t really have to; your I-140 is approved right?

- Yes, I-140 Approved

- If you’re I-140 is approved then you are not obviously qualified for EB2 probably or even if you do there are few reason why people go on H1b but I always recommend to use your EAD, but there are few reasons for one, for people, for example, who don’t feel like there I-140 is secured, just to let you know once you’re I-140 is approved and 180 days have passed (after filing of the adjustment of status I-485) the previous company cannot revoke the Form I-140, that means you can keep that and move under AC21 (American 21st Century Act ) you can move to another company on EAD.

- Now the question should you keep the H1B? Are you married? Your wife also has EAD?

- Yes I’m married, yeah she is working on EAD

- Then you don’t really need to go on H1b, that is not required, the only reasons I would ask you to do that if you feel like there is some problem with the company and there might be a chance down the road that an I-140 is revoked, not based on the company own stuff but based on the government thinking that there was fraud or something involved but if that’s not the case you don’t need to keep the H1b going and how many years of H1b have you had going so far? Then the other reason is if your spouse need an H4 because the spouse was not able to get an EAD (priority dates not current).

- I have completed 6 years on H1b and I got extension with the present company for 3 more years.

- And when is it Expiring?

- 2015

- Well this is how it works you don’t really need to do that but if at a later stage you need h1b before 2015, you can actually use that do a transfer and keep that 2015 priority date even if I-140 is revoked and if not revoked you can use it to extend with another I-140 you can extend a new h1b, but honestly you don’t really need it. In this case, it is something your can decide depending on how strong is the company who file for your I-140.

- I can change the job on EAD is that what you’re saying?

- Yes, EAD let me explain to you what you are doing right now, EAD is a work permit you can work anywhere actually, you can work at night at another company which is not related, but the AC21 which is parking of the GC, I call it the parking because you need to have the company to go back to , when the GC comes in your hand so that is why the AC 21 is just a parking you have to go there when you get the GC, there is nothing that prevents you from going back to company A, but we need to do AC21 letter, then you can transfer it’s not really a transfer its just your taking the GC from company A and parking it with company B. So the answer is yes you can go ahead and move on the EAD.

- And my educational qualification is 3 years in Bachelors degree in India so that’s why I’m not qualified.

- That’s why you’re not going to get EB2, Keep it on EB3 but make sure your moving to same or similar position.

3) I have a question starting a business in US I’m on H1, am I able to start a consulting company?

- Not really because, the answer is yes and no – you can own a company but you cannot be active in the company like for example you can own shares in Microsoft but you’re not going to be active in the company so its dormant so that’s allowed but if you’re going to do like daily work like signing checks taking orders and things like that no its not allowed – you’re in violation of your H4 this is why we are very upset because the law just locks people on H4.

- Ok, can I even hire the people?

- The problem is what do you consider active, let’s say you set up the system and then you just own the company your just the share holder, you don’t get involved in the day to day running of the business you should be fine but the problem is that if the immigration look at it will say – ok how did you do that? You have to talk to the people owning your business, you have to do the accounting, and you have to do things like that then you are in violation of the H4, so it is very difficult to run a small business on H4. Even if the law allows you to own a business you cannot be participating in it but there is no loophole really because if there was one people would have taken it. I have a very good article on this H4 options on my website www.peerallylaw.com you can read about it, but technically you cannot have a small business because you will have to be active in it.

- Even on H1?

- H1 same problem, unless there’s an H1 attached to that company, you’re not technically allowed to do any kind of active role, you cannot be a director you can not be in a marketing role, you cannot be in sales, many people ask me well how will they know, well that’s an different issue, that’s a matter of proof, if you lie, it is your call, but we don’t advise anybody to lie, but that’s the way that visa is designed, even working remotely while you’re sitting in US can be a problem.

4) I have a question regarding transfer of a status, so when I apply change of status from H1b to F1 from within staying in the US it might take between 3-6 months but does my current employer gets notified or it can affect my current status in any way.

- Ok you’re on H1b right?

- Yes

- Ok there are 2 rules if you’re transferring from one H1b to another under AC21 rule you can start working on the same day you file the transfer even if it is not approved.

- Second rule no they don’t get notified what is happening it goes only with the new company, now if you don’t want to move before it is approved then do premium processing and then as soon as its filed even the employer knows about it and they send a cancellation notice on your current H1b so it doesn’t matter because the transfer has already passed.

- No sir I’m asking from H1b to F1

- Oh yes, no they don’t get informed about it, so you stay on H1 until the F1 is approved, but sometime they might send a letter by mistake to your employer but no they cannot because it has nothing to do with the employer .

>> Radio Shows Selected Questions (Part 1)

>> Radio Shows Selected Questions (Part 3)

The information contained in these answers is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, radios shows, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. Shah Peerally is the managing for the Shah Peerally Law Group PC located in Newark CA. The office main area of practice is Immigration law www.peerallylaw.com Ph:510 742 5887

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4. Do I have to be physically abused before filing a VAWA case?

No –  contrary to popular belief, one does not have to be physically abused to file under VAWA. Mental, physical or even prevention of filing the right immigration papers can be construed as abuse. VAWA is a powerful legislation and it helps women, children and men.  The provisions of VAWA (Violence Against Women Act) can also be used in situations of removal of conditional residence – Form I-751.

You should call our office on 510 742 5887, we will be glad to evaluate your case.

I751

5. Do I have to be divorced before filing VAWA?

No, however, you have only two years after the anniversary of the finalization of the divorce to file the petition. Please make sure that you are filing under the prescribed time.

VAWA is one of the most powerful legislation, however unless you take advantage of it on time, you might miss the chance. Note that your spouse has to be a US Citizen or permanent residence to benefit from the Violence Against Women Act.

In case you are victim of domestic violence, and it was reported to the police, and your spouse is not a US citizen or permanent resident, you might be able to opt for the U Visa.

In case you are victim of domestic violence call 911. And if you want to get some possible immigration benefits, feel free to call us at 510 742 5887

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