H4 to H1b Cos Out of status - Request for sooner response

[kavi@kavitha]

I came to Us on a H4 visa in Jan 2013, applied for H1b Visa through Desi Consultancy and got it by Oct .
I was under the assumption that H1b is valid from the day I start working because one of my friend had a same scenario where she had begun working 6 months after H4 to

H1 COS (apparently it turns out that she wasn't aware of it either). In the meantime, my employer unfortunately has not been able to get me a single interview so

far. Now I am jobless its been 3months 15 days not having job also play slips

I planned to change my employer around which I began checking in forums for the impacts of employer change and thats when I got to know that I am OUT OF STATUS now.
I immediately spoke to my employer what best could be done to deal with my status where in I was told the below:
*for Nov and Dec month, I would have to give a leave letter
*from JAN they could generate paystub. For this paystub generation however, I have been asked to pay $1400 (per month) to cover all the taxes
They say, by doing this I could maintain status

I have been in touch with a few other consultancies who say they can handle transfer of my visa, but they are not telling me the procedure how they are going to

transfer without having pay stubs.

Please recomended the options that I have for this situation.

[raghvi]

I came to Us on a H4 visa in Jan 2013, applied for H1b Visa through Desi Consultancy and got it by Oct .
I was under the assumption that H1b is valid from the day I start working because one of my friend had a same scenario where she had begun working 6 months after H4 to

H1 COS (apparently it turns out that she wasn't aware of it either). In the meantime, my employer unfortunately has not been able to get me a single interview so

far. Now I am jobless its been 3months 15 days not having job also play slips

I planned to change my employer around which I began checking in forums for the impacts of employer change and thats when I got to know that I am OUT OF STATUS now.
I immediately spoke to my employer what best could be done to deal with my status where in I was told the below:
*for Nov and Dec month, I would have to give a leave letter
*from JAN they could generate paystub. For this paystub generation however, I have been asked to pay $1400 (per month) to cover all the taxes
They say, by doing this I could maintain status

I have been in touch with a few other consultancies who say they can handle transfer of my visa, but they are not telling me the procedure how they are going to

transfer without having pay stubs.

Please recomended the options that I have for this situation.

Its unfortunate that in spite of so many resources available around on the internet educated youths get entangled in false promises of such **** consultancies. As you have realized, you are pretty much out of status since last 4 Months. Once out of status, you wouldn't be able to transfer or file a change fo status to another visa type. You should complain to the DOL against the employer , also, you can demand that the employer pay for your return trip back to home country. Dont just blindly trust another consultancy it make only be similar or worst.
The last resort would be to leave US and return on H4 visa.

This is my opinion not legal advice.

[kavi@kavitha]

ohhh is it ...thanks u very much for quick response i was eagerly waitng... From couple of other blogs i understand that it is possible to get the paystubs from emplyer by paying him ourself

is this really possible and what are the impacts if this is really possible
is it not incorrect to do this?

if i really get paystubs i could tranfer visa back to h4 or
in the mean time if I get employed i could transfer my visa to new employer

Please let me know your inputs tht would be really helpful for me

[Nattybone]

ohhh is it ...thanks u very much for quick response i was eagerly waitng... From couple of other blogs i understand that it is possible to get the paystubs from emplyer by paying him ourself

is this really possible and what are the impacts if this is really possible
is it not incorrect to do this?

if i really get paystubs i could tranfer visa back to h4 or
in the mean time if I get employed i could transfer my visa to new employer

Please let me know your inputs tht would be really helpful for me

Hello, Kavi@kavitha.

It is not a good practice to pay the employer for the paystub but the reality is that this does take place. Ofcourse this is not permitted and if found, amounts to violation of the visa norms. Your H1B employer has to pay taxes to the government (there is a tax on the employer for employing someone on H1B visa) and if there are any other expenses like Insurance provided to you. As you have no project, the employer has no revenue source to deduct this from, so he is asking you to pay for his expenses on maintaining your visa status.

As this activity takes place real time, the months which are gone cannot be helped. A leave application seems the only way out (there might be more ways, but i am not aware of). For the months ahead, the employer can run your payroll with the money you pay him to meet his expenses.

With the paystubs in hand, you could seek visa transfer (i would suggest back to H4 and not another H1, but that is your call). If you are lucky, you will get away with the leave application for 3+ months (which seems unlikely) and the visa will get transferred. If not, the letter from USCIS might ask you to leave the country, get the visa stamped from outside the country and re-enter.

I hope this helps.

Wishing you luck. Personal opinion.

Cheers,

[munnipavuluri]

Hello, Kavi@kavitha.

It is not a good practice to pay the employer for the paystub but the reality is that this does take place. Ofcourse this is not permitted and if found, amounts to violation of the visa norms. Your H1B employer has to pay taxes to the government (there is a tax on the employer for employing someone on H1B visa) and if there are any other expenses like Insurance provided to you. As you have no project, the employer has no revenue source to deduct this from, so he is asking you to pay for his expenses on maintaining your visa status.

As this activity takes place real time, the months which are gone cannot be helped. A leave application seems the only way out (there might be more ways, but i am not aware of). For the months ahead, the employer can run your payroll with the money you pay him to meet his expenses.

With the paystubs in hand, you could seek visa transfer (i would suggest back to H4 and not another H1, but that is your call). If you are lucky, you will get away with the leave application for 3+ months (which seems unlikely) and the visa will get transferred. If not, the letter from USCIS might ask you to leave the country, get the visa stamped from outside the country and re-enter.

I hope this helps.

Wishing you luck. Personal opinion.

Cheers,

Hi Nattybone

I am on same situation as kavitha..My doubt here is if i go back to my home country,Is there any chances to ask about my H1-B(like out of status and pay slips) during h4 stamping or at port of entry..

If they ask me above question what is the best way to answer ...

Thanks&Regards:
Munni

[kadkhiq81]

H4 to H1b Cos Out of status - Request for sooner response

Mostly they would not ask about h1 when you go for h4 stamping. As long as your spouse h1 is valid and does not have any issues on that. However you might need to provide the details such as Out of status in the DS 160 form. Again, I am not sure whether DS 160 has any questions regarding that or not.

Tell the truth and remember that they have all your details.

This is my opinion.

[munnipavuluri]

Mostly they would not ask about h1 when you go for h4 stamping. As long as your spouse h1 is valid and does not have any issues on that. However you might need to provide the details such as Out of status in the DS 160 form. Again, I am not sure whether DS 160 has any questions regarding that or not.

Tell the truth and remember that they have all your details.

This is my opinion.

Thanks for your reply...

[kavi@kavitha]

Thanks for the update .. i am worried about filing the complaint since I am unaware of the consequences later. I am not sure whether the eventual legal verdict will be in my favor nor about the duration and cost it takes. Also given that currently my Visa is out of status, am not sure whether the case that I file holds good. Further since the employer (obviously) should be a resident, am not sure if the case will hold. Further will this case filing have any impacts on my future employment prospects and any further Visa/GC processing.

From a few friends I understand that it is very difficult to fight legall case because you are supposed to spend lot of money on it and moreover we have come here on H1b (immigrants) so worried about future consequences.how feasible is it to approach legally?

[Nattybone]

Thanks for the update .. i am worried about filing the complaint since I am unaware of the consequences later. I am not sure whether the eventual legal verdict will be in my favor nor about the duration and cost it takes. Also given that currently my Visa is out of status, am not sure whether the case that I file holds good. Further since the employer (obviously) should be a resident, am not sure if the case will hold. Further will this case filing have any impacts on my future employment prospects and any further Visa/GC processing.

From a few friends I understand that it is very difficult to fight legall case because you are supposed to spend lot of money on it and moreover we have come here on H1b (immigrants) so worried about future consequences.how feasible is it to approach legally?

Hello, kavi@kavitha.

I am not sure how much complaining will help. I am not trying to discourage you. Should you feel that you should complaint, please do so. What i feel is your employer / visa holder is most likely a Citizen, it is very unlikely that any real damage will be done to them. You are on a sponsored visa, and are likely to lose your status in the country. All this is a big stress creator.

So, if by having a dialogue with the employer about helping you in some way (financially - as you might have to leave the country) is the preferred way. If you switch back to H4 (after generating the paystub) without any complication then it is all fine. If you end up travelling to India, you could ask your employer if he is ready to compensate you - for some of the expense that you will incur. If he does not agree, you cannot really do much. You could file a complaint but i am not sure how will it help.

I hope this helps.

Wishing you luck.

Cheers,

[munnipavuluri]

Mostly they would not ask about h1 when you go for h4 stamping. As long as your spouse h1 is valid and does not have any issues on that. However you might need to provide the details such as Out of status in the DS 160 form. Again, I am not sure whether DS 160 has any questions regarding that or not.

Tell the truth and remember that they have all your details.

This is my opinion.

Hi,

I am trying to fill ds-160 for h4 stamping...In that they have one point like were you previously employed...As my h1 is in out of status,am i employed or not ..

If i select Yes again there is so many fields about my employment like employer details ,job role and employment date

Can any one pls help me on the above ..

Thanks In advance..

[Nattybone]

Hi,

I am trying to fill ds-160 for h4 stamping...In that they have one point like were you previously employed...As my h1 is in out of status,am i employed or not ..

If i select Yes again there is so many fields about my employment like employer details ,job role and employment date

Can any one pls help me on the above ..

Thanks In advance..

Hello, Munnipavuluri.

How do you know you are out of status? If your payroll was not run even for a month, then i am not sure you could be counted as employed. But, because you changed status, it came in the records. Can you share more details about your case, please? So, that we are better informed.

Wishing you luck.

Cheers,

[munnipavuluri]

Hello, Munnipavuluri.

How do you know you are out of status? If your payroll was not run even for a month, then i am not sure you could be counted as employed. But, because you changed status, it came in the records. Can you share more details about your case, please? So, that we are better informed.

Wishing you luck.

Cheers,

Hi nattybone,

I am currently on h1-b (October to till now)..but my employer failed to get me a project,he never put me on pay roll..I came to us on h4 on feb 2013...I got my h1-b on oct 2013...I go throw so many blogs saying that I am on out of status from oct to till now,and suggests better to go back my home country for h4 stamping and come back on h4 ...I decided to go for h4 stamping and in the process of filing ds-160 there is one feild like were u employed or not and date of last visa issue
My question is
1)am I employed in above situation
2)in date of last visa issued which details i need to mention h4 or h1(bcoz I don't have h1 stamping in my passport,I just have I-94)

Thanks in advance

[Nattybone]

Hi nattybone,

I am currently on h1-b (October to till now)..but my employer failed to get me a project,he never put me on pay roll..I came to us on h4 on feb 2013...I got my h1-b on oct 2013...I go throw so many blogs saying that I am on out of status from oct to till now,and suggests better to go back my home country for h4 stamping and come back on h4 ...I decided to go for h4 stamping and in the process of filing ds-160 there is one feild like were u employed or not and date of last visa issue
My question is
1)am I employed in above situation
2)in date of last visa issued which details i need to mention h4 or h1(bcoz I don't have h1 stamping in my passport,I just have I-94)

Thanks in advance

Hello, Munnipavuluri.

Unfortunately, you are in a difficult phase. If you received the H1B approval notice then you definitely are on H1B and no longer on H4. If your employer did not run your payroll then you are Out of Status. If possible, try engaging a good Immigration Lawyer ($100 for 1 hour consultation) who could suggest the best path. While their knowledge is limited too but would not hurt to understand your legal options.

Would you want to try the leave method? You could prepare a back dated leave application and say something like you were unwell or something and were on leave (and could not work) and now would like to switch back to H4. Your sponsor needs to support this by giving an acceptance of a back dated letter. You could try filing for a H4 petition on Priority Processing. It will cost money and take some time. Maybe, going to India and getting a new stamp is less taxing.

Try posting a fresh query on this H1B forum with precise wording in the Subject Line. I am positive someone with more understanding will be able to help. Do try this, please.

Sorry about your visa situation. Wishing you luck.

Cheers,