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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28197
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Need your help... I am working for an employer (staffing

Customer Question

Dear Sir/Mam - Need your help... I am working for an employer (staffing company), who placed us to client location for an assignment. My assignment got ended on 2nd September 2016 (my payroll used to run weekly) and since then I am hunting the job but my employer is not paying me since then and even he is not saying anything and he is saying that don't worry we are looking job for you and submitting your profile for our new clients... side by side I am also hunting job my self and giving interview even full time jobs...Need to know couple of things here:
1 - If I get a full time job with another employer outside and I resign here then would it be any problem for me to get my visa transfer successfully to another employer due to lack of past 2 weeks paycheck and if not then would it any problem in future with other visa related process such as green card processing?2 - If I get a full time job with another employer outside and I join him on receipt notice of transfer case then is there any risk to join such as can it be rejected due to last few paycheck missing?3 - If I don't get job for next couple of more weeks then would it be any problem for me ? am I entitled to live in USA until my employer terminate me?4 - If I don't get job for next couple of more weeks then what could my employer does and what could be implications?5 - I don't know but my employer is not ready to reduce my billing rate to get new assignment?I need your help on this very badly and running with a lot of fear... please help me and your help is very much appreciated :)6 - Separate Question - What if a person worked for a company few weeks ago and he has all the time sheets approvals from the client but didn't get paid for that period from employer then how can an employee claim that amount because employer says that you didn't give sufficient days of notice hence he would not pay... what are the next option?
Submitted: 2 months ago.
Category: Immigration Law
Expert:  Judith replied 2 months ago.

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

You are benched and therefore out of status.

Need to know couple of things here:
1 - If I get a full time job with another employer outside and I resign here then would it be any problem for me to get my visa transfer successfully to another employer due to lack of past 2 weeks paycheck and if not then would it any problem in future with other visa related process such as green card processing?

You are in a very bad situation here! You are in the US unlawfully possibly since April 2007 or when ever your last pay check was cut.

It is unlawful for a company to bench an employee and not pay them . It is not only a violation of immigration laws, it is a violation of the Department of Labor laws which control the Labor Condition Application filed by the company.

If the company has an attorney, that attorney is probably advising them to cancel the benched H1B visas and give the return airfare to the employees. A case has come down recently from the DOL where H1B employees (physicians) filed suit against their employers for LCA violations and the court pierced the corporate veil and found the company president personally liable for the back wages, fines, etc. http://www.scribd.com/doc/1831269/Department-of-Labor-2001-00010B http://www.aila.org/content/default.aspx?docid=26065 The sums were huge.

Also see http://www.dol.gov/sol/media/briefs/kentech-12-10-2003.htm

So not only should their attorney advise the company to cancel the visas, they should give you a return ticket to India so that you are out of the US and have a hard time sueing them! They can get away with this until some benched employees join together, retain an attorney who knows about these kind of cases and files complaints on their behalf with the Dept of Labor.

Now, more importantly, your situation. You will not be able to show that you are in lawful status if and when you find another H1B employer to file a Petition to Change Employment and Extend your stay. Your chances are slim to none to be able to stay here without showing payroll records to verify lawful status. Your current employer will even have to show those to get you an extension.

In rare instances, there are cases where the government will ask the immigration service for a special nonimmigrant visa to allow you to be in the country to testify against a defendant in a case they bring against someone. If you are the only one making this complaint to the DOL it isn't a big case. However, if you and your fellow benched employees band together and it becomes a big case, there might be some hope for that.

This benching is going to hurt your opportunities to ever return to the US if you are not proactive and the embassy finds out you were here out of status because you were benched. I strongly recommend that you leave and go through consular processing for a new visa to clean this up. You never know when it will come back to haunt you.

I am really, really sorry for you in your trap here. As usual, the big company gets away with something and you are the one to pay for their violations. It happens over and over again and that is why the H1B programs carries a lot of negativity with those who have an anti-immigrant program.

You can find a lawyer at http://www.ailalawyers.org/ under Business who may give you a free consultation and take this on if you can get some of the other employees to join you.

H1B/H2B VIOLATION REPORTS

Pursuant to your Labor Condition Application the company owes you the wages on the LCA from the time you entered the country to present. They are not allowed to bench you. You can file a complaint for the wages at:

Administrator, Office of Foreign Labor Certification
Employment & Training Administration
Department of Labor
Room C-4312***** NW
Washington, DC 20210

Wage and Hour Division Website: http://www.wagehour.dol.gov/

and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-***-***-****).

The employer is also supposed to pay your travel expenses back to ________

2 - If I get a full time job with another employer outside and I join him on receipt notice of transfer case then is there any risk to join such as can it be rejected due to last few paycheck missing?
Your petition will be approved but you will not get an I-94. You will have to depart the US andapply for your new visa to be able to work.

There is NO GRACE period to beon the bench.
3 - If I don't get job for next couple of more weeks then would it be any problem for me ? am I entitled to live in USA until my employer terminate me?
https://www.uscis.gov/tools/ombudsman-liaison/practical-immigration-consequences-foreign-workers-slowing-economy

USCIS Memorandum on benching and going out of status immediatel.
4 - If I don't get job for next couple of more weeks then what could my employer does and what could be implications?
Your employer must provide you return transosttiontohomecontrl
5 - I don't know but my employer is not ready to reduce my billing rate to get new assignment?

Your rate of pay must be at least what is stated you will be paid on he CA

6 - Separate Question - What if a person worked for a company few weeks ago and he has all the time sheets approvals from the client but didn't get paid for that period from employer then how can an employee claim that amount because employer says that you didn't give sufficient days of notice hence he would not pay... what are the next option?

Under our labor laws you MUST be paid notice requirement or no notice.

ou can file a complaint for the wages at:

Administrator, Office of Foreign Labor Certification
Employment & Training Administration
Department of Labor
Room C-4312***** NW
Washington, DC 20210

Wage and Hour Division Website: http://www.wagehour.dol.gov/

and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-***-***-****).

The employer is also supposed to pay your travel expenses back to ________

. Please ask follow-up questions if my answer is not clear.
I hope that I have provided excellent service and, if so, would love a 5 star rating. If not, please let me know how I can further assist you. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Customer: replied 2 months ago.
Thanks for your response but I am not living without paycheck since april 2007 as you said... I am not getting paid for last two weeks only.
Expert:  Judith replied 2 months ago.

My apologies, I was using my tablet and they keys sometimes stick:

4 - If I don't get job for next couple of more weeks then what could my employer does and what could be implications?
Your employer must provide you return transportation to home country.

I cannot find where I said you were without paycheck since April 2007. I did state that you may not be placed on the bench and not paid for any period of time. There is NO GRACE period to be on the bench and you must be paid the rate of pay stated in the LCA.

I apologize for the confusion but I do not see an April 2007 date.

Judith

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