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H-1B & BENCH
 I came to US in September 2000. So far, I have failed in finding a project on account of a slowing economy. My employer has not paid me so far. But he has applied for my H-1B visa extension. Am I out of status?
JK
You are not out of status and you are lucky that your employer has not cancelled your H-1B. It is legal for you to remain in the US. But your employer may get into trouble at a later date for making false salary stubs. US law states that employers need to pay tax on salary and must produce tax return in case the INS asks for the same. These days the INS asks for tax returns when you apply for H-1B extension.
What will happen if I'm not on the payrolls for more than six months?
JK
You will not face any problems
I came to the US on 9 March 2000. From the past three months, I am on bench. I have pay stubs up to Jan 2001. Last week, I sent my papers (including w-2 form - tax) to a new employer for H-1B transfer. Will the INS reject the transfer application, as I do not have pay stubs for the months of Feb, March and April 2001? If this is bound to pose problems, can you suggest an alternative solution?
Hash
We do not think you will encounter any problems. In case the INS does raise objections, you need to ask your employer to sanction long leave for that period. If you have access to his letterheads, get the leave approved by your project manager.
I found a number of useful articles and tips on the site for H-1B holders who have lost their job. I arrived in the US on an H-1B visa a few days back. My employer has not been able to find a job for me. If I am on the Bench after one month (no bench fee), what about my status? Can I look for another job? Can I transfer my H-IB without any pay stubs? Should I file an application for an F-1 visa?
Dan
I understand and appreciate the state you are in. In case you are on the Bench for less than 30 days, please try to find another position in the next 30 days. You cannot transfer your H-IB unless your employer gives you a certificate that you are on leave ever since you arrived. This can be used to prove that you have not been sacked and are working.
If you need any clarifications, please call me at 91 98450 05249 or contact isn.org.
I have been working for company A for 10 weeks. I have pay slips for the first six weeks but not for the last four weeks. The company is not paying me because I am on Bench. Can I transfer the H-1B? I have a letter from the company stating that it won't pay salary while I am on Bench. Is it necessary that I work for at least three months before the H-1B transfer?
K Robert
You can transfer your H-1B with the pay stubs you have. After you have transferred the H-1B, you can sue your company on the basis of the letter which stated no-payment during the Bench period.
It is illegal and a federal offence not to pay employees on Bench. Please keep the letter carefully. After you have transferred your visa, approach the Immigrant Support Network (isn.org). They will help you find a lawyer.
I am an H-1B worker from India. I have been victimised by my ex-employer. My employer took advantage of the fact that I was in an alien country and do not wish to get involved in legal hassles. But now I want to take up this issue and I seek your help in getting justice. Can you help me find a New Jersey-based lawyer, who fights for employee's rights.
Here are the facts of the case:
A New Jersey-based company (ABC) appointed me as Systems Analyst in Oracle ERP implementation in November 1999. ABC asked me to sign a MOU in India with their 100% Indian subsidiary company. The MOU contained two basic conditions:
ABC will train us in India in Oracle ERP at their Employee Training Center in New Delhi, India's will sponsor our H-1B and appoint us salary of $ 70,000 p.a. plus benefits.
The employee will work with ABC for two years. The employee will have to deposit a Security Deposit equal to $7,700 with ABC in lieu of training and sponsorship expenses. The security deposit was fully refundable after completion of two years. However, in case the employee leaves the company before two years the amount would be forfeited.
I paid the amount, signed the MOU and ABC issued the appointment letter, with a basic salary of $70,000 per annum. After successful completion of training, I arrived in the US on 6 June, 2000. I joined the ABC on 07 June 2000 and on the same day I applied for social security number at my employer office address.
I regularly attended office and signed the Attendance sheet with other employees from 7 June, 2000. I attended interviews, which ABC arranged for me. I got a project on 13 July 2000 and ABC took me as an employee on that date. I did not receive a salary for the first month.
As soon as my appointment for the project was confirmed, ABC asked me to sign another Employee Contract. According to this contract, my annual salary was $55,000 per annum. The contract stated mentioned that after completion of project, the salary for bench would be as follows:
For the first month of bench total salary.
For the next two months (At bench) 50 per cent of the salary.
I was shocked to see this clause because the LCA and INS petitions for H-1B state my salary was $64,688 p.a. and as per the original appointment letter $ 70,000 p.a. The company had made no mention of Bench earlier. I was unwilling to sign the contract but my employer threatened to cancel my visa ABC however raised my salary to $65,000 with effect from 7 August, 2000 and to $72,000 with effect from 7 November, 2000.
I worked on the project till 19 November, 2000. After that I was off-project till 20 February, 2001. For the bench period, my employer paid me 50 per cent of my base salary from 18 December, 2000 to 20 February, 2001 (10 weeks). I worked on another project from 21 February, 2001 and kept working till 15 March, 2001 when my employer terminated my services. I joined another company XYZ immediately, after applying for H-1B transfer.
ABC also withheld my salary for a week amounting to $1,385. ABC had given me a laptop worth $1,000, which I held in lieu of my salary. In turn, ABC send me a final pay stub, adjusting $1,112 (after deduction of taxes etc from $1,385) as miscellaneous deduction, and showing amount payable as zero.
Now, based on these facts, I want your opinion on whether I can recover my losses:
Salary for the period from 7June, 2000 to 12 July, 2000 - the period I worked before ABC formally signed me on as an employee. I have the following documents to prove that I attended the office and was on work in that period:
Photocopies of attendance sheets from 14 June, 2000 to 12 July, 2000, signed by other employees and me.
A letter issued by the HR manager asking me to fill form I-9 and specifically mentioning the paragraph - "DO NOT FILL DATE as we will ourselves fill the date you began work with us".
My employee corporate card issued by AMEX in June 2000 itself.
My social security acknowledgement letter dated 7 June, 2000 issued at my employer office address.
Difference of 50 per cent salary paid during the bench period: from 18 December, 2000 to 20 February, 2001 (Ten Weeks). I have read the H-IB regulations issued by DOL dated 20 December, 2000. According to this, I understand H-1B workers should be paid their full wages in non-productive status. I need your help and opinion on this. I have pay-stubs for this period clearly mentioned "Regular Bench", to prove this.
Salary withheld as miscellaneous deduction for the last week of working: For the week 5 March, 2001 to 11 March, 2001. I have timesheets signed by project manager for this week, which I faxed to ABC. I also have the final pay stub showing entire amount as Misc. Deduction.
Difference in the salary paid, promised and declared in petitions - for the first 25 days after official joining (from 13 July, 2000 to 7 August, 2000). I was paid a monthly salary calculated on $55,000 p.a. while the INS and LCA petitions stated $64,688 p.a. and $70,000 in my appointment letter.
Security Deposit, which I paid as MOU, signed in India with the 100% subsidiary of ABC: I have the MOU signed in India for this and receipts issued by the Indian Subsidiary of ABC
Anon
Thank you for entrusting us with the details of your case. Before we venture to offer advice, we would like to say that you should contact the Immigrant Support Network. The ISN will help you find an immigration lawyer and you must take a legal opinion on the advice we offer.
According to our lawyers, there are certain strong points in your case:
According to the new H-IB ruling, it is illegal for employers to ask employees to sign a restrictive work contract. As your company has erred on this, you could sue the employer.
The three salary figures are definitely illegal.
In addition any bond signed in India between an employer and employee does not hold good in the US.
The DOL states clearly that Bench beyond a period of 30 days is illegal.
During Bench and in-between projects it is incumbent on the employer to pay full salary to employees.
Therefore, on the basis of these facts, we recommend that you contact the ISN (www.isn.org). The ISN is a non-profitable body and will help you get in touch with an attorney. As we are based in India, we will not be able to do this. Some of our other readers have approached the ISN and found their attorneys exceedingly helpful.
We understand that you may have tried your best in recovering your losses. But before you decide to sue ABC or take the services of a lawyer, try talking to the company for the last time. Of course, if it fails you can take legal help.
If I travel on an H-1B visa and I am on bench or laid off, can I look for another job? If yes, what is the procedure for changing the employer status on my H1-B visa?
Viquar
You can look for another job if you get laid off. Please ensure when you get laid off your employer does not apply for cancellation of the H-IB visa
I arrived in US in January. Till March. I was on bench. Now I have applied for an H-1B transfer. I have a single paystub for the month of April. Is this sufficient to effect H-1B transfer? I am under the impression that we should have paystubs for last three months. Is there any way out? Please suggest.
XYZ
I feel one pay stub is enough. We, however, suggest that you get the pay stubs and then apply for H-IB visa transfer.
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