Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction?
Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B.
Just trying to find out what the possible advantages would be at this time with EAD.
There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.
Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.
Now that I received my GC through employment, does my employer need to change my position to the one filed in the Labor Certification?
Yes, now that the GC is approved, your employer should "permanently" give you the job described (including the title, salary and job duties) in the Labor Certification. This change should take place within a "reasonable time" after the GC approval.
Keep in mind, "permanent" does not mean forever. This term describes a job that has no pre-decided termination date. We see no violation of the law, If the employer, due to economic or other circumstances, can no longer support the job after having offered it to you in good faith.
Some of our employees' Green cards
have been filed. There projects have ended. They are working on H-1 but possess EAD and have 140 approved and 485 pending more than 180 days.
Quote: (1) If we revoke their H-1, are we still required to pay full wages if our clients say they do not currently have a project for our employees?
Ans. You are not required to pay "bench salaries" for employees whose H-1 are revoked (remember you must inform CIS and offer employee a one-way ticket home). But we then have exposure to the questions, "do you still have a "permanent" job for them?" If the answer is no, then their GC processing can be interrupted unless they use AC21 portability.
Whats the relevance or importance of having continuous pay stubs (How much gap is permissible if Not significant?) in the processing of Green card of an H1B holder.
Continued payments are required by law for H-1 holder, unless they come under some very limited exceptions for leave for employee's personal reasons. Not paying, exposes the employer to investigation and penalties and may place the employee out of status.
In the green card context, non-payment can lead to problems with demonstrating ability to pay wages.
For both H-1 and GC, nonpayment can lead to an assumption that no genuine job exists. That could lead to cancellation of one or both processes, except for situations where AC21 portability is involved.
U.S. Citizenship and Immigration Services (USCIS) provides additional guidance regarding the Employ American Workers Act (EAWA) to employers seeking to file H-1B petitions.
I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes.
My question:
Q1. Do we need to withdraw PERM LC for him that was submitted 2009?
Q2. Question from the employee, Mr. Smith:
If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.
A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
My wife is on H1B and now she is 7th month pregnant. If she takes leave on non-payment, will she be in H1B status or out of status?
As long as the leave of absence is reasonable and customary (or required by medical necessity), she should be considered in status.
How many months gap is permisible for H-1 and also in GC process if person is on H-1 ?
I mean to say supposse one H-1 holder lost his job and if he got another job after 02 months ( Gap of 02 months ) then his H-1 and GC process will be effected ? His last co. is supporting by keeping her I-140 as such ( no revock )
(Condition: Person has H-1 and his I-140 was also aproved in last co. but due to some reason she left job and would like to join another co. on 3rd month, say after 02 months and would like to file H-1 in this new company )
A gap of even one day (unless excused by USCIS) puts a person out of status and is not permitted. When you leave a sponsoring employer, it certainly calls into question the continuity of existence the green card job'
Immigration Law In The Workplace
Rajiv S. Khanna
(Published in The Practical Lawyer, Dec. 2009
A publication of American Law Institute-American Bar Association)
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Formerly referred to as the Basic Pilot Program, E-Verify is an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security (DHS), in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers. E-Verify provides an automated link to Federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.
Why should I consider participating in E-Verify?
U.S. employers are required by law to verify the employment authorization of all workers they hire on or after November 6, 986, for employment in the U.S. employers are required by law to verify the employment authorization of all workers they hire on or after November 6, 986, for employment in the United States, regardless of the workers’ immigration status.
This Handbook for employers gives instructions for completing Form I-9 . It also includes one copy of Form I-9.
DO's |
Don'ts |
Use program to verify employment eligibility of new hires | Use program to verify current employees |
Use program for all new hires regardless of national origin or citizenship status |
BEFORE YOUR COMPANY ENROLLS IN E-VERIFY
U.S. Citizenship and Immigration Services (USCIS) invites federal contractors and subcontractors affected by the Federal Acquisition Regulation (FAR) E-Verify clause to attend a free E-Verify informational seminar on Feb. 23 or 24 at 2451 Crystal Drive, Arlington, Va.
Each two-hour seminar will include a demonstration of the E-Verify system, presentations concerning issues related to the employment verification process, and question and answer segments with government representatives.
To assist prospective H-2A employers in preparing their agricultural job offers and applications, the Department of Labor has posted a new Employer Guide for Participating in the H-2A Temporary Agricultural Program. This guide summarizes and explains key regulatory requirements for a U.S. employer to participate in the H-2A Program, including what documents to file, important timeframes and deadlines, helpful filing tips, and how to contact the OFLC Chicago National Processing Center for further assistance.
Introduction:
VIBE is a web-based adjudication tool used by USCIS to validate basic information about companies petitioning to employ alien workers. VIBE uses commercially available data from an independent information provider (IIP) to validate basic information about companies petitioning to employ certain alien workers. Dun and Bradstreet (D&B) is the current IIP for this program.
Executive Summary June 1, 2010
Listening Session – Employment Eligibility Verification
Background
DOJ flyers for employers and employees on Form I-9 document issues for persons covered by Temporary Protected Status (TPS) or Deferred Enforced Departure (DED).
WASHINGTON—On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure certified copies of birth certificates to U.S. citizens born in Puerto Rico because of a new Puerto Rico birth certificate law. After Sept. 30, 2010, all certified copies of birth certificates issued prior to July 1, 2010, will become invalid. This new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. It only affects the validity of certified copies of Puerto Rico birth certificates.
EBSA News Release: [03/19/2010]
Contact Name: Joseph DeWolk or Gloria Della
Phone Number: (202) 693-4676 or x8664
Release Number: 10-0366-NAT
The U.S. Department of Labor released updated model notice packages to enable group health plans and employers to provide notice on the availability of the Consolidated Omnibus Budget Reconciliation Act continuation coverage premium reductions under the American Recovery and Reinvestment Act through March 31.
Our company has worked with the Law Offices of Mr Rajiv S Khanna for the past few years and he and his team has handled all our immigration needs. His team of Ms Baker and Ms Fisher have done another great job for one of our employees H1 extension case. It is seldom that you find companies with such remarkable bunch of people working in one team. Their work is very timely and efficient. They are always on top of things. We look forward with working with them in the future for all our immigration needs. Thanks team Rajiv. DVS Enterprises, LLC