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Ely, Counselor at Law
Category: Immigration Law
Satisfied Customers: 3941
Experience:  Private practice in several areas, including immigration
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Sorry - yes I am here on my first extension of a H1B and

Customer Question

Hi James,
JA: Have you filed any paperwork with the USCIS (U.S. Citizenship and Immigration Services) yet?
Customer: Sorry - Hi Pearl - yes I am here on my first extension of a H1B and currently in the process of going for my GreenCard, should be putting the I-140 through this week.
JA: Have you talked to a lawyer yet?
Customer: I have a question regarding PTO as my employer is already illegal in that they have me on Hourly and at a rate where I have to work 52 hours a week to make up the minimum per my LCA.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Last year I had difficulties in the family and had to travel home, the employer agreed that all would be time off and paid for with no issue - now I am 30 hours negative and we are in the new year and that isn't including the 34 hours that will appear now from Christmas week - should this stay negative or be zeroed out on the start of the new year?
Submitted: 6 months ago.
Category: Immigration Law
Expert:  Expert James replied 6 months ago.

Hello! Thank you for using Just Answer. I am James, and I will be assisting you. Please give me a few minutes to review your question and prepare a response.

Customer: replied 6 months ago.
Thank you James - I feel my situation is a bit funny and I am being taken advantage of.
There are many things that I know I think I can hold against my employer however while the GreenCard application is in process I would rather have that completed though them than find a similar job and re-apply
I am happy to talk on the phone to go over all if that will be of any benefit.
Expert:  Expert James replied 6 months ago.

I am a little confused. Are you asking if you should have been getting paid while you were outside of the US?

Expert:  Expert James replied 6 months ago.

I do think a phone call would be beneficial in this instance. But you are not obligated to have one. You can click on the "Call Me" button on your page, or I can send you the offer. NOTE: There is an additional fee for the Additional Service.

Customer: replied 6 months ago.
Well I know PTO time is accrued over time per pay period, I also understand that the employer has to pay me under the H1B. So should I be worried that my PTO by next week will be at -65 hours. Does that therefore mean I can't have PTO this year because i am negative?
Expert:  Expert James replied 6 months ago.

Can you explain to me what you mean by "negative"?

Expert:  Expert James replied 6 months ago.

Was the LCA issued on an hourly or salary basis? And if you extrapolate the hourly rate to a salary rate for 1 year, does it meet the prevailing wage on the LCA?

Customer: replied 6 months ago.
Great question - firstly negative because i took more hours last year than the 15 days allowed so I am now -32 hoursFor the LCA - the LCA value is 72500 per annum, my current hourly rate is 27.39 (56,972/yr)
To get to 72500 I have to work at least an additional 10 hours a week in over time at 41.085/hr to get the difference.
This obviously excludes weeks with holidays.
Expert:  Expert James replied 6 months ago.

15 days of what? Leave?

Customer: replied 6 months ago.
15 days of Personal Time Off (sick and holiday both as PTO)
Expert:  Expert James replied 6 months ago.

So let me see if I understand. You are normally given 15 days of paid leave. You took more days, but they were not paid. So now you are asking if you have to work overtime so that you can make up for the days that you were not working and not getting paid?

Customer: replied 6 months ago.
no - i know that I don't get more PTO time for extra hours worked
I want to know if that would cause an issue for booking a vacation this year
Expert:  Expert James replied 6 months ago.


I am really trying to understand, but the terms being used are not common in this context so it is very difficult to understand what has transpired and what will transpire and what you are seeking.

For instance, this is the first you've mentioned about future time off. Up until now, it's seemed the focus was on the employer, your pay, PTO and how the past might affect your hours and the H1B transfer. And I still do not understand what you mean by negative numbers.

When you say -32 hours, negative hours of what? What is the baseline from which you are in the negative?

Are you sure you do not want to get on a phone call?

Expert:  Expert James replied 6 months ago.

I am trying to figure out if you are asking an employment law question (i.e., whether the employer can keep you from getting PTO in 2017 because of the amount you took 2016), or if this is an immigration law question (i.e., whether your H1B can be affected by the salary you are currently drawing, which does not meet the LCA threshold).

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