H1 B transfer without paystubs

[adam pink]

I have landed US 2 months back through a consultant and till now haven�t been assigned any project or given any salary/paystubs. They never mentioned it anywhere I am getting offers from other employers for permanent position but can�t transfer my H1 due to no paystubs. If I complaint to DOL I may get in trouble by my current employer because employer has a right to know the identity of the person who has complained.

I don�t even have sufficient money for hiring a lawyer.

How to make sure safe transfer in such conditions? Do I have any options?

[Ulf Dittmer]

I don't think it's legal for your company not to pay you. The H1B process involves the company certifying that they will pay prevailing wages; the visa application should state what that salary is.

[Mark Herschberg]

Originally posted by adam pink:
If I complaint to DOL I may get in trouble by my current employer because employer has a right to know the identity of the person who has complained.

Really? Can you reference the law of specific state DOL policy? The Federal DOL seems to try to maintain privacy; if you file an actual formal complaint or try to bring suit against them I'm sure they would know, but it looks like they have tip lines, or at least advisory lines.

--Mark
[ December 12, 2008: Message edited by: Mark Herschberg ]

[Joe San]

Originally posted by adam pink:
I have landed US 2 months back through a consultant and till now haven�t been assigned any project or given any salary/paystubs. They never mentioned it anywhere I am getting offers from other employers for permanent position but can�t transfer my H1 due to no paystubs. If I complaint to DOL I may get in trouble by my current employer because employer has a right to know the identity of the person who has complained.

I don�t even have sufficient money for hiring a lawyer.

How to make sure safe transfer in such conditions? Do I have any options?

But how does a company offer you a H1 without a project or a job?

[Pradeep bhatt]

Originally posted by Jothi Shankar Kumar Sankararaj:


But how does a company offer you a H1 without a project or a job?

The OP would have got the visa a year ago. The company at that time might have anticipated some companies would be their client in 2009.

[Joe San]

Originally posted by Prad Dip:


The OP would have got the visa a year ago. The company at that time might have anticipated some companies would be their client in 2009.

But I guess he is not under OPT as he says he just landed two months ago?

[adam pink]

To give more details: I have the offer letter from the company and given 60K $ as an annual salary. They had given even a project letter stating that i'll be assigned to internal project 'xyz' within 2 weeks of my arrival in US. Which is not true.

I have came across Wage claim form WH-2 of DOL and it stats the company has right to get the identity of the person who loged the complaint. Also, we can log the complaint to DOL as "anonymous" with giving only the email address of your's. But heard that the mode of action taken for such requests is not serious.

I am not an OPT candidate. I am a IT professional with 3 years of IT experience coming from India.

[ December 12, 2008: Message edited by: adam pink ]
[ December 12, 2008: Message edited by: adam pink ]

[Mark Herschberg]

Originally posted by adam pink:
I have came across Wage claim form WH-2 of DOL and it stats the company has right to get the identity of the person who loged the complaint.

Can you provide a link to this form? Because the DOL's WH-2 form seems to be titled "Application for Special Industrial Homeworker's Certificate". (Although again I'm talking about the federal DOL since we don't know in what state you reside.)

--Mark

[adam pink]

I am sorry it's not WH 2

Please see the form attached in the below link
http://lwd.dol.state.nj.us/labor/forms_pdfs/lsse/mw-31a.pdf

I am in New Jersey.

[Mark Herschberg]

That form seems to be to make an actual claim for missing wages, and so yes, the company would ultimately need to see the form to know to whom to pay the wages.

However, they note on the form that you can file that claim anonymously. Obviously that won't get your personally some wages, nor is it clear that a single anonymous complaint will trigger anything, but if a number of employees filed such a complaint the NJ DOL might investigate.

--Mark

[Deb Nath]

This is really a serious issue that many of the H-1B holders facing including me. I don't know the pros and cons of my this draft.but the things are something like this.

To get somebody in usa on H-1B, companies have to follow the H-1B rules declared by USCIS. Company will provide all the details in its petition like salary structure, client details, other compensation and all other requiered/requested information (albeit fake most cases). If fortune favours then the candidate will get selected in the lottery system.Yes this is literally a lottery system, your petition number will be feed into the system and then all random number generation. Nobody cares to check the company's background. F***ing employer may even ask you to pay the half/full lawyer fees. At this position we all H-1B candidate should have thought if he isn't able to pay damn attorney fees then how would he pay you salary without any client project as it is the only source of income for him. But but, generally , we pay it because at that time we can only see the currency conversion rate (1 USD = 48 INR, 12 DEC 2008) so we pay the lawyer fee. If everything goes well you will also get visa and you will be happily landed with thousands of derams in your mind in USA.

Now the trouble starts. Now we come to know that Oh! we will get salary if we get projects. Then what hell is mentioned in your offer letter,60k $. It was a sweet trap. The US market isn't so good nowadays. So It's hard to get projects easily. The process of getting project is again a big topic so I ain't including it.OK so you dont have any project.Now the furtration starts building up, because you can only work on Corp to Corp base. No permanent position,No H-1B transfer,No Independently... H-1B transfer requires atleast 1 to 3 paystubs. Employer(small companies) won't give you paystubs (most of the cases) though there are exceptions because they are afraid that you will leave them if you get a good oportunity on hand. So If you are lucky and get a project then work happily with your employer and earn.

I also don't have any project on hand, neither getting salary. Now I realize the root level situation. Everything is fake here, everything. I also got some good opportunity for fulltime as well as H-1B transfer but I couldn't apply as I dont have paystubs to do the transfer.

My ultimate goal is to get a project so that I will be happy so as my employer.And would not get time to think/write a post like this.

To OP, be careful before doing H1B transfer. You may come out from one ditch and fell into another. And regarding suing your employer, US goverment knows everything about this and Mr. Obama may take some hard step. But an individual effort won't work i mean effective.

[adam pink]

There might be some ways of how to get out of all this. My company is holding more than close to 700 employees in india. The firm is a listed firm in BSE. And i never thought that there USA development center is mere a Consultancy with no actual projects. They exploit you and show your experience to 8 to 9 years which is more than double of the experience what i have. They put you in a situation in which you gets harassed talking to client with your fake experience in working in USA. I know USA is a land of dreams and some people are making it an absolute shit. There might be something or somehow which will provide solution for the similar problems.

If anybody have an experience to tackling such an issue please share..

[Eric Lemaitre]

Hi adam,

I don�t even have sufficient money for hiring a lawyer.
How to make sure safe transfer in such conditions? Do I have any options?

IMHO transferring an H1B means having the very same visa with the very same expiration dates but with a different company name affixed in your passport. It doesn't ever mean having pay stubs, which should be obviously logic but is no legal requirement to me, the only legal requirement for an H1B transfer being to already own a valid H1B and knowing another company which agrees to sponsor you.

So the solution is to borrow the money (around 3,000 / 3,500 $US) and hire yourself an immigration lawyer, or having your sponsoring company do it for you.

Best regards.

[Mark Herschberg]

Originally posted by adam pink:

I don�t even have sufficient money for hiring a lawyer.

If you have a valid case you don't need money, many cases of this nature are taken on contingency.

--Mark

[Deb Nath]

Originally posted by Eric Lemaitre:
IMHO transferring an H1B means having the very same visa with the very same expiration dates but with a different company name affixed in your passport. It doesn't ever mean having pay stubs, which should be obviously logic but is no legal requirement to me, the only legal requirement for an H1B transfer being to already own a valid H1B and knowing another company which agrees to sponsor you.

Really? I am under the impression that you require paystubs.

[Deb Nath]

Originally posted by Mark Herschberg:
If you have a valid case you don't need money, many cases of this nature are taken on contingency.
--Mark

Can you please elaborate it,Mark?

[Mark Herschberg]

Originally posted by Deb Nath:

Can you please elaborate it,Mark?

Many litigation attorneys work on a 1/3 contingency fee. Depending on the type of case they may or may not need a retainer, but for a case of this nature probably not--at the very least you can find an ambulance chaser and they're used to working with clients with limited assets.

--Mark

[NJ Joshi]

In your condition based on my experience in US with consulting companies you have limited options.
1. You can't really prove you worked for company and you can not claim for wages either. As you can not show you really worked (time sheets etc).
DOL helps only if you worked and don't get paid.
2.Your landing in US is legal as you have H1-B. But that doesn't prove you are working for company. Thats the reason US Immigration ask for salary slip as proof of employment or W2 that is obviously you don't have.
Your case is landed in US but never joined company.
3.Your company can easily prove that you landed on H1B but never joined them. Until unless you are maintaing timesheets or some some sort of payment proof i.e relocation / plane ticket refunds /written doc on compnay letter head for Social security or bank account or apt rental with some thing that can prove your timespend on work.
4.You can go to DOL for payment claim only if you have proof of work i.e timesheet or similar.
5.Lawyer can't help to get wages either you will only loose money.
6.Your option look for other company who can transfer your visa. There are many who are looking for ppl with valid H1B visa.And they can apply for trnasfer without pay slip or W2 proving to INS that your current employer is not able to provide job for you and hence not paying. This will help on both ways you will get new job and current company going to face difficulty for future visas. I have seen such cases before.
7.You can complain to USCIS for your condition, company hiring on H1 - B without having real jobs and hence not able to pay. This will cause serious problem for future visa applications.
8.You can't get any money from any where only you can hire a lawyer and go to court and ask for compensation but good lawyer eats lot of money that type of cases takes any where 6 mo - 2 year.

[ December 14, 2008: Message edited by: NJ Joshi ]
[ December 14, 2008: Message edited by: NJ Joshi ]

[Joe San]

Hope there is some change with these process.

[Mark Herschberg]

NJ Joshi's post has a number of points I feel are incorrect.

Originally posted by NJ Joshi:

1. You can't really prove you worked for company and you can not claim for wages either. As you can not show you really worked (time sheets etc).
DOL helps only if you worked and don't get paid.

This of course is completely untrue. The only times I've ever had timesheets was when working in academia. My other companies just had me sign a contract. Turns out contracts are legally binding in all states in the US. There should also be other documentation and other possible paper trails (e.g. emails, phone records).

Originally posted by NJ Joshi:

2.Your landing in US is legal as you have H1-B. But that doesn't prove you are working for company. Thats the reason US Immigration ask for salary slip as proof of employment or W2 that is obviously you don't have.
Your case is landed in US but never joined company.
3.Your company can easily prove that you landed on H1B but never joined them. Until unless you are maintaing timesheets or some some sort of payment proof i.e relocation / plane ticket refunds /written doc on compnay letter head for Social security or bank account or apt rental with some thing that can prove your timespend on work.

How does an H1-B come to this country without joining a company? As I understand how the program works, that's not possible. The fact that he set foot in this country with an H1-B visa sponsored by a company is, I believe, evidence that he is employed by the company.

Originally posted by NJ Joshi:

4.You can go to DOL for payment claim only if you have proof of work i.e timesheet or similar.

Wrong.

Originally posted by NJ Joshi:

5.Lawyer can't help to get wages either you will only loose money.

Also wrong.

Originally posted by NJ Joshi:

8.You can't get any money from any where only you can hire a lawyer and go to court and ask for compensation but good lawyer eats lot of money that type of cases takes any where 6 mo - 2 year.

Good lawyers charge the same as bad lawyers. The 1/3 contingency fee is pretty standard. In addition to wages you can try suing for interest and legal costs. Yes, it can take a while, and even when you win it can be harder to collect--but if you have a good case or case that could cause more trouble for them they may settle sooner.



--Mark
[ December 15, 2008: Message edited by: Mark Herschberg ]

[adam pink]

In the name of Evidence I have there weekly allowance which they pay through cheque and its merely less than 500 $ per month.

Also when you apply for SSN there is an inquiry from the SSN office that the candidate belongs to the company(Which is already done)

[Paras Jain]

I have heard that in the past few months DOL has become stricter in the H1 laws. One of the company got fined for irregularities. Some of the people have got surprise checks from their past employers. When they called those companies those employers said.. "yes this is for your salary for this and this month and you will be receiving a few more checks". Many consulting companies starting following law very strictly, if they are not getting project they are starting to send people back to India, instead of keeping them without salary illegally. They even cancel their H1 Visa after they leave company, which normally company does not do because it incurs cost.

@Adam
First of all how far you want it to take. One way to tacitly accept the exploitation and vent your frustration in the forums. But the exploitation has no limit. Tomorrow they might give less salary, deny you vacation, ask you money for extension, for insurance and etc.
Other way is to take some action. From your mail it seems you are more action guy than just "words" guy. That is good. If your company really employs 700 consultant and listed on BSE then they can't afford to lose business. Believe me, if you really get your point across and threaten your company in the hard way, you won't even need a lawyer just a warning mail should do. If then also they don't budge then just sending one legal notice is enough to shake their bases.
Hope for the best but be prepared for the worst. If they budge then you say you have full time offers get them. If they don't at the worst they will send back to India. That should be fine because anyway job market is scary here. Just my 2 cents.
[ December 16, 2008: Message edited by: Paras Jain ]