skalimuthu

Hi,

I am in USA. I had L1 visa. I got a new employer who was ready to recruit me with H1b. As status change my H1b got approved in last week of October. So I resigned from my L1 sponsor company on Nov5th 2004.

I haven't yet joined my H1B sponsor company as of today.ie I am not in their payroll. My H1B employer is saying that I will be in their payroll only when I am assigned a project.They are saying I will be assiged project in Jan 2005 and I will get into their payroll only in Jan 2005.

Qns
1)What are legal implications of the above?
2)Am I in legal status now?
3)Will I be in legal status if I get into payroll of my H1b employer in Jan 2005 only?
4)What should I say during filing tax?Should I say I didn't have a job for nov and dec ?


One of friend suggested that I should get into my H1B employer payroll immd and I can take a vaction for 2 months, so that legally I will be in status.

Pls suggest.

Ingo Pakleppa - wee web site for email

skalimuthu wrote:
    > Hi,
    >
    > I am in USA. I had L1 visa. I got a new employer who was ready to
    > recruit me with H1b. As status change my H1b got approved in last week
    > of October. So I resigned from my L1 sponsor company on Nov5th 2004.
    >
    > I haven't yet joined my H1B sponsor company as of today.ie I am not in
    > their payroll. My H1B employer is saying that I will be in their payroll
    > only when I am assigned a project.They are saying I will be assiged
    > project in Jan 2005 and I will get into their payroll only in Jan 2005.
    >
    > Qns
    > 1)What are legal implications of the above?

The employer is breaking the law. What they are doing is called
"benching" and is illegal.

Unfortunately, you yourself also have a status violation independent of
that: you worked for the L-1 sponsor without authorization after the
H-1B was approved. I doubt that they would hold it against you since you
apparently quit within a reasonable time frame. Just wanted to point
this out.

    > 2)Am I in legal status now?

No. You are claiming to be in H-1B status, but not actually working for
anybody who sponsored the H-1B. My recommendation would be to consult
with an immigration attorney at this point.

    > 3)Will I be in legal status if I get into payroll of my H1b employer in
    > Jan 2005 only?

Well, there is the gap where you were supposed to be working but weren't.

    > 4)What should I say during filing tax?Should I say I didn't have a job
    > for nov and dec ?

Yes. Taxes shouldn't be a problem. They are entirely disconnected from
immigration.

    > One of friend suggested that I should get into my H1B employer payroll
    > immd and I can take a vaction for 2 months, so that legally I will be
    > in status.

That might be an option. A few conditions need to be met, though:

- the employer must actually pay you at the specified rate.
- the vacation must be requested by you. The employer may not propose,
suggest or in any way initiate you taking a vacation because of a lack
of work. Given the situation, I don't think that you could make this case.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.

skalimuthu

Thanks for the reply.

>The employer is breaking the law. What they are doing is called
>"benching" and is illegal.

How am I getting affected because of this?

Can I stay in US without job or in bench and then join the job later?Will I face some problem later because of this? How long cab I be in bench?

Ingo Pakleppa - wee web site for email

skalimuthu wrote:
    >>skalimuthu wrote:
    >
    >
    > Thanks for the reply.
    >
    >
    >>The employer is breaking the law. What they are doing is called
    >>"benching" and is illegal.
    >
    > How am I getting affected because of this?

You are affected because you are effectively unemployed. As an H-1B, you
are required by law to work for the sponsoring employer.

In this respect, the law really isn't very fair because it is not your
fault. USCIS may, for this reason, show you some leniency, but it's
really a discretionary decision.

    > Can I stay in US without job or in bench and then join the job
    > later?Will I face some problem later because of this? How long cab I
    > be in bench?

You are not allowed to be benched at all. In practical terms, as long as
you find another job quickly, my guess is that USCIS would likely
forgive you. Once you have the new job and don't depend on the old
employer any more, you should also file a complaint with Department of
Labor.

--
Remember, I am strictly a layperson without any legal training. I
encourage everybody to seek competent legal counsel rather than relying
on usenet newsgroups.

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.