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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28192
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Second Opinion: I am in US from march 2015 on h4. My H1B was

Customer Question

Second Opinion: I am in US from march 2015 on h4. My H1B was applied with COS from 1st OCT 2015 However, because of some reasons I am not able to join and planning to Join by 15th Nov. (my payroll will start from 15th nov) I am good ?I heard there is 60
days reporting timee to employer? Is it like after 60 days he has to pay me for 60 days Or He can start my payroll after 60 days? i.e I can report after 60 days?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

Are you referring to the LCA 60 day period?

Judith

Customer: replied 1 year ago.
I think DOL rule 30/60
Do I have 60 days to report to work ?
Customer: replied 1 year ago.
I am concern about my current status?
I am planning to join my em,ployer on 15th Nov..... but my h1b COS started on 1st OCt...Am i fine?
Expert:  Judith replied 1 year ago.

3. Payment of H-1b workers

H-1b employers are required to pay wages indicated under Labor Condition Application (LCA wages) 30 days from H-1b admission into the US. If an alien changes status to H-1b within the US, the LCA wages must commence no later than 60 days following the effective date of change of status. Once this 30/60-day window closes, employer must begin paying wages. Note: employer’s wage obligation begins before 30/60-day window closes if the beneficiary is available for work. If an employee reports to work before the 30/60-day period ends, the employment relationship begins at that time.

The employer's obligation requires them to begin to pay you no later than 60 days of you being ELIGIBLE to commence work.

So then the question is when are you ELIGIBLE TO WORK and what is a reasonable excuse not to commence work?

(ii) 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. DHS regulations require the employer to notify the DHS 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)).

https://www.law.cornell.edu/cfr/text/20/655.731

So it boils down to WHY you are not eligible to work until 11/15 whether you are out of status during that period of 10/01 to 11/15.

I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 1 year ago.
Thanks Judith......I was looking for some better opportunity.....and i also told my employer that if it is fine if i join him by Nov.
He told this 60 days clause which i can voluntary take before joining him.......But now i read somewhere as this may be a concern................So wondering If I can join him on 15th Nov by just telling that i didnot joined him voluntary {or do i need to show any documents for that time period}
Customer: replied 1 year ago.
If you think I am out of status....Will re-entering US again on h4
and asking my employer to request for COS to h1b again will solve the issue?
Expert:  Judith replied 1 year ago.

It is USCIS that will raise the question regarding whether you were eligible to begin work within the 60 days and it appears that you are eligible to start work but electing voluntarily not to.

Therefore USCIS would consider you out of status.

You can cure this period by exiting and re-entering on the H4. You can only get a change of status to H1B with an employer, including this employer filing a new petition for you. there is no change of status to H1B any other way, like for other categories where you can file the I-539.

Judith

Customer: replied 1 year ago.
By re-entering again on h4.
Am i also eligible to transfer visa to a new employer ? and if my employer files a petition it will be CAP exempt?
and how much time will it take to COS to h1b
Expert:  Judith replied 1 year ago.

This is a new issue which requires a new question thread to discuss CAP issues.

I have answered your original question regarding the 30/60 day rule.

Judith

Customer: replied 1 year ago.
will filling petition again be the same process? same fee?
Expert:  Judith replied 1 year ago.

You may begin a new question thread for these new issues.

Judith

Customer: replied 1 year ago.
Ok...and regarding 30/60 rule...
Do you think only re-entering is the only solution?
As my employers Lawyer was telling it to be fine ....so confused
Expert:  Judith replied 1 year ago.

I don't see how you are fine when you don't fall into one of these

voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work

Otherwise you are eligible to work.

Judith

Expert:  Judith replied 1 year ago.

I just looked at the first opinion of Expert James and his answer was the same as mine! His answer is not the same as your lawyer's advice "you will be just fine".

I would appreciate you rating me as that is the only way I am compensated for my time.

Judith

Customer: replied 1 year ago.
I will confirm with him again. In voluntary can i show touring? [Do i need to show any documents for same]..Thanks Judith! can i have a appointment with your law firm and what wll be the charges for that
Expert:  Judith replied 1 year ago.

You have to have some grounds that make you INELIGIBLE to work. USCIS views this very narrowly and you would have to show airline tickets, hotel receipts, travel itinerary which establish you did not have the capacity to work, not just merely that you wanted to find a better job!

You are walking on a slippery slope. So far I don't see any legit reason you are not eligible to report to the job.

If you would like to continue this, I need you to rate one of my above answers. Thank you. It show good faith on your part.

Judith

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