Published on the World Journal Weekly on October 23, 2016
Q&A 1 2
My New H-1B Employer Is Not Paying Me During the Time of Transfer
On H-1B status, I decided to leave the old employer and transferred to a new employer. The new employer has filed for my H-1B transfer, and I am now working for him. However, he refuses to pay me until the time that the H-1B transfer is complete. He says that this is his company policy. In the meantime, he is not giving me any information about the company’s H-1B filing for me including the receipt number or any other information. What can I do in this situation?
An H-1B petition is the undertaking of an employer, and the beneficiary has limited rights. We encourage employers to be generous with information with the beneficiaries, but realize that many employers are not so forthcoming with information. It is not legal for an employer, however, to make you work and not compensate you for your work. If and when the petition is approved, you are entitled to the entire lower portion of the form on which the right side is an I-94 and the left side identifies the petitioner and the validity date of the H-1B. If you are only requesting consular processing or the extension of status portion of the petition is denied while the petition portion is approved, you will need the original I-797A approval to go through a consular interview for an H-1B visa. Even if you are from Canada and do not require a visa, you would still need the original I-797A approval to return to the U. S. when you make a fresh entry.
What Is My Status Now Where I File While Legal for Change of Status But Was Denied After My Status Expired?
I came to the U. S. on a visiting visa in July 2015 and was allowed to stay for 6 months. I filed for a change to become an F-1 student in September 2015. I received a request for more information in April 2016. After responding, I just received the denied letter last week. I checked the rules and know that I can only do a motion to have Immigration reopen or reconsider its decision. If I file a motion within 30 days and am still here while the motion goes on, will I still be legal until the decision is made?
As your application for change of status to F-1 was filed on a timely basis, the time during which you would be considered to begin accruing unlawful presence is the decision date. You would begin to accrue unlawful presence even if you filed a timely motion to reopen or reconsider the denial. If U.S.C.I.S. has not made a decision close to 180 days, you would face the choice of either staying in the country and possibly incurring a three-year bar against return once you leave, or leaving before the 180th day to avoid a 3 year bar. The immigration laws impose a 3 year bar against individuals who remain in the U. S. for 180 days unlawfully. They also allow all time to be considered legal in the event that you remain past 180 days and win your motion. So that is the dilemma.