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intrepid
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Posted on 10-24-09 11:48
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Hi there, I lost my previous project about 5 months back. At that time, I was employed by an American consulting firm. As you know how bad the job market was/is, I couldn't find another project for 2.5 months (technically I was out of status, as the firm didn't generate my paystubs). I had to do my H1B transfer to a new company (American) when I got the current project 2 months back. I'm still in a project doing good but, just two days back I got my H1B approval document without I-94. Now, I have to go outside United States and face US consulate abroad before I can come back in here. My questions are: i. Looking at my situation, what is my chances of getting stamped? ii. Where do you think I should go for the stamping, Nepal, Canada or Mexico? I mean, whether anybody is familiar with the current visa acceptance/denial trend in the above places. I would really appreciate any information/feedback/guidance to my current situation. Thanks, Intrepid
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intrepid
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Posted on 10-24-09 3:55
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pyaradeshbasiharu
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Posted on 10-24-09 9:42
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Intrepid,
I am not a lawyer but here are answers to your questions,,
"i. Looking at my situation, what is my chances of getting stamped?" The biggest mistake u made was to stay in US once the employer-employee relationship ceased to Exist and U were out of status since no pay roll was run for the period. By the rule of thumb USICS gives 20-40 days to change ur status once u were not getting paid on H1b.Since USCIS acknowledged your H1b approval by not sending u the I94, there are chances that there might be lots of queries while going for consular processing. Stick to the truth and give the Consular honest answer and i think u should be fine.
ii. Where do you think I should go for the stamping, Nepal, Canada or Mexico? I mean, whether anybody is familiar with the current visa acceptance/denial trend in the above places.
By any chances of ur Visa is denied on canada or mexico u can't return to US , u have to Fly back home from there..I think it will be wise to to go to Nepal for Visa stamping..
Make sure u consult a qualified immigration lawyer before going home..Forums can be misleading so double check with lawyer..
All the best
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pyaradeshbasiharu
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Posted on 10-24-09 11:00
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sitaram_121
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Posted on 10-25-09 9:46
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Intrepid, If you are planning to get stamped in Nepal make sure that you have enough paperwork from current employer.I heard that US Embassy asks for photo of current workplace..thats completely non relevent Most of the Dhoti consultacy gives you a H1packet before going back to native country for stamping.That H1 packet contains their registration and other other documents. Also some friends were telling that US embassy have checklist for H1b stamping.
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intrepid
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Posted on 10-25-09 9:51
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Thank you very much Pyaradeshbasiharu for your valuable information. I'll definitely take into consideration your insightful suggestions while making the decision. I'll keep you posted about my situations. Once again, thank you very much. Intrepid
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intrepid
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Posted on 10-25-09 10:07
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You are absolutely right Sitaram_121ji; sometimes minor glitches bring a lots of gigantic trouble. I'm not gonna leave any loop holes as far as I can see. Along with other required documents, I'll definitely take photos of my work place with me. Thanks, Intrepid
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unicorn
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Posted on 10-25-09 11:25
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@intrepid, i am confused on your statement >>> At that time, I was employed by an American consulting firm. As you know how bad the job market was/is, I couldn't find another project for 2.5 months (technically I was out of status, as the firm didn't generate my paystubs). I had to do my H1B transfer to a new company (American) <<< so, do you mean that the previous American Consulting firm, who sponsored your H1B didn't know that there is no benching for H1B candidates? Did you file your H1B petition through them or was it a transfer as well? Did you ask any vacation time from them, if no..then legally you shouldn't be out of status (well it depends.....)...technically they should be the one paying you for that period of time with your paystubs...You can consult a lawyer, and file petition against them at DOL... About getting your visa stamped, again you don't need this stamped until you decide to travel outside US. Murthy forum's H1B stamping section would provide you good insights on current trends in Canada or Mexico once you decide to go for stamping. Again like pyaradeshbasiharu said, Nepal would be the best bait, but it depends on personal preferences and convenience. Cheers Click here to subscribe to pyaradeshbasiharu's postings. You will get notification when the users posts in sajha. ![](file:///C:/Users/Greeshma/AppData/Local/Temp/moz-screenshot.png)
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intrepid
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Posted on 10-25-09 12:03
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Hey Unicorn, When I lost my previous project, the company (H1B holder) gave me the employment termination letter right away (so that they can save their ass legally), but at the same time told me that they wouldn't revoke my H1B (wouldn't notify USCIS about my employment termination). And meanwhile, the marketing team started my marketing. I even approached couple of companies to do my H1B transfer right away, but, because of the crippled economy and tightening USCIS/DOL's policies, they too were playing safe game; 'First lets get a project and we'll do H1B transfer'. Time passed so quickly to hit 2.5 months and I kept on trying. And finally got the current project, but, because of the rivalry between the companies and personality clashes between the recruiting folks, I couldn't materialize Corp-to-corp. So had to transfer my H1B to this new company even though I didn't have latest pay stubs.
I had thought about the possibility of the current situation, but didn't have any option other than to go for H1B transfer.
Intrepid
Last edited: 25-Oct-09 12:04 PM
Last edited: 25-Oct-09 12:06 PM
Last edited: 25-Oct-09 12:08 PM
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pyaradeshbasiharu
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Posted on 10-25-09 12:10
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Unicorn,
" About getting your visa stamped, again you don't need this stamped until you decide to travel outside US."
He needs to get visa stamped because his H1 was approved without I94.
" so, do you mean that the previous American Consulting firm, who sponsored your H1B didn't know that there is no benching for H1B candidates? Did you file your H1B petition through them or was it a transfer as well? Did you ask any vacation time from them, if no..then legally you shouldn't be out of status (well it depends.....)...technically they should be the one paying you for that period of time with your paystubs...You can consult a lawyer, and file petition against them at DOL... " It seems rather strange that they didn't know that there is no benching for h1b candidates and I don't buy this..
You are absolutely spot on , on filing WH4 with DOL in your state to claim back wages.It's Intrepid right to get back his back wages. Again , this was the mistake he did, had he filed WH4 with DOL then it would have put him in H1B status even though he was not getting Paid. His H1B would have come withe I94 attached on it and he didn't have to go for Stamping.
It really amazes me that most of us who are on H1b don't even know the Rights of the H1B holder..U should be paid all the time during the H1B time, if a employer is not willing to pay you when the Project is over, file a Complaint to State DOL to get the back wages.In short "KNOW YOU RIGHTS AS H1B holder"
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pyaradeshbasiharu
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Posted on 10-25-09 12:19
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Intrepid ,
When r u planning to go for Visa Stamping?
Go for Stamping ASAP..Right now u don't have a Valid Status by the Look of things that u have mentioned..
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intrepid
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Posted on 10-25-09 1:38
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Pyaradeshbasiharu, I'm planning to go for stamping asap. I gotta discuss with my manager at the client company for the leave and other important stuffs.
Can you please shade light on this too? Even after H1B holding company issues legitimate termination letter, can we seek help of DOL for the pay stubs for the bench period after the termination date? I was just wondering coz' I think as soon as we receive the termination letter, there would not be any 'Bench' period'. It was my compulsion to stick with them even after getting the letter.
Thanks, Intrepid
Last edited: 25-Oct-09 01:39 PM
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pyaradeshbasiharu
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Posted on 10-25-09 2:05
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" Even after H1B holding company issues legitimate termination letter, can we seek help of DOL for the pay stubs for the bench period after the termination date? "
No you can't!! Provided that Your company has given you termination letter and you have received it and If Your former Employer had sent H1b termination to the USCIS..They played safe..However you can claim reasonable Fare to go back to your home country when your H1B was terminated..That's the Obligation of the Employer...
Yes, there was not even a Bench Period with Your previous Employer..By the Look of things i am pretty sure that they have sent H1B termination request to USCIS , and that may be cause You Don't have I94 Attached to Your H1B Petition..
You can't File WH4 with DOL because you were not an employee of that Company after the Termination letter..
For Everyone, A piece of Advice, To maintain Status on US if u r on H1B, switch to Different Status(B1/F1) as soon as as u feel that you are Loosing Your Current Project /Job.
If the Employer is not paying the amount mentioned in LCA, File WH4 with DOL immediately, that will maintain Your status.After u file WH4 and employer knew it and tries to terminate u after u filed WH4 , you are Protected by WHistle Blower protection ACT and it will again Substantiate your Claim with DOL.
Hope it helps
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vatguy
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Posted on 10-25-09 2:14
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If it is the first time you are stamping H1B you would have to go to Nepal anyways.
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unicorn
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Posted on 10-25-09 8:11
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@pyaradeshbasiharu, i believe, interpid's current petition is messed up by his new lawyers. He should have gotten his H1B transfer with the new I-94 card. I am not sure about this... but he can re-file to get his I-94 (please do your re-search) and still be in US, because it shouldn't have been a consular processing. Of course! the easy way would be to get out of the country get a valid visa and a new I-94 while re-entering....Interpid>>You can call USCIS to check this ...I would suggest you to talk to an immigration lawyer asap...... About the first American consulting firm...either they are lying between their teeth or being ignorant...as it is mandatory for any H1B sponsoring company to inform USCIS about termination of H1B employee within a month. I am amazed by this...as any employer would give a minimum of 14 days notification before terminating any employee....If they still haven't done this...as said go to DOL, and you have a chance to get your pending wage....... Good luck.. Please log in to subscribe to pyaradeshbasiharu's postings.
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pyaradeshbasiharu
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Posted on 10-25-09 8:33
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Unicorn,
You r not getting the Big Picture..This guy's contract was terminated couple of months ago and Pretty much sure that his comapny had informed USCIS about the Termination..Once the Employer-Employee Relationship doesn't exist he is "Out of Status" ..Transfer with ppl not being in status doesn't come with I-94 attached with it..Plain and simple..His lawyer did the right thing by not asking for COS(Which i think he did)..
"as any employer would give a minimum of 14 days notification before terminating any employee....If they still haven't done this...as said go to DOL, and you have a chance to get your pending wage......."
Not necessarily, employer doesn't have to give any notification days for terminating employer..there is nothing about this in H1B rules..There is no question abt pending wages..He was given termination letter on a given day and after that date he is not an employee of that comapny, plain and simple..What he can get is the Airfare to fly back to Nepal..That's the employer responsibility and he can Knock the DOL for that..
Last edited: 25-Oct-09 09:11 PM
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