Extending or Transferring H-1B Visa When Alien is Out of Status

In order to file for the extension or transfer of H-1B visa status, the alien must prove have an extension or transfer petition filed prior to the expiration of the alien’s current status and the alien must have maintained status throughout. Maintaining valid status means that the H1B employee must be paid at all times by the petitioning employer.

There are many unfortunate situations which might cause an H-1B visa holder to fall out of status. These situations include those who have done so inadvertently, those who have not been paid by their employers for work done, or those who have filed complaint against their employers and who have subsequently received retaliatory treatment by their employers. H-1B holders are, in many ways, at the whim of the employer and are very vulnerable. That is why Congress has enacted various legislation to protect those workers who had fallen out of status through no fault of their own. Please bear in mind that there are complex legal issues involved in re-instating status to one who, through no fault of his own, had fallen out of status which requires the assistance of competent legal H1b lawyer.

I have seen these issues more frequently recently out of our offices located in Columbus, Ohio and Cleveland Ohio. The same applies for our Washington, DC office. But most frequently, I have had a number of clients visit us in our Michigan offices to also find ways to re-instate their status.

Here are the situations that might occur causing an H1B visa holder to fall out of status thereby restricting his or her ability to change or extend her H1b visa with another employer:

• When H-1B Visa Holder Falls Out of Status Due to Inadvertent Technical Violations:
There are myriad situations where an H-1B visa holder fell out of status through no fault of his. An example of this is where an H-1B visa employee moves from one job to another and the employer fails or neglects to file an H-1B visa transfer petition with the USCIS. Another example I have seen lately, alien moves from job to another unbeknownst to him that the immigration lawyer negligently files an H-1b visa petition requesting consular processing instead of transfer. In both of these scenarios, the employee H-1B visa holder had done nothing to cause this confusion and the fact that he is now out of status. Sometimes, the inadvertence is not discovered for several months after the fact.

The solution to correct these types of scenarios is to file an H-1B visa petition “nunc-pro-tunc” pursuant to regulations. nunc-pro-tunc This a Latin term which literally means “now for then.” It is used when a request is being sought retroactively. In other words, when we file an H-1B visa petition nunc-pro-tunc we would be requesting approval retroactively to cover the period of inadvertent technical violations. There are legal criteria which must be met in order for the H-1B visa holder to benefit from this form of relief. These legal criteria must be argued carefully as this a relief that the alien is requesting. I have been successful on numerous occasions to request H-1b visa transfers retroactively to cure inadvertent violations which occurred due to no fault of the alien H-1B visa holder.

• When Alien Is Not Paid By His Employer Or Placed on “Bench” Status:

First and foremost employers are not allowed to bench H-1B visa employees. Employers who seek H-1B visa employees must pay them prevailing wages or actual wages whichever is higher consistent with the H-1B visa petition that was filed on their behalf. More recently, the issue of benching has become more prevalent lately. Being benched inhibits the H-1B alien from being able to transfer his H1B visa to another employer as the alien is unable to show pay stubs which in turn will make it difficult to prove that he has maintained lawful status.

There is a solution to transferring the H1B visa of a benched H-1B employee. Since the rules clearly state that employers may not bench H-1B employees and upon discovery of this by the US Department of Labor the employer will be forced to pay the employee back wages, it follows that the H-1b holder remains employed during the benched period. The lawyer must collect sufficient evidence to prove to the USCIS that the alien was benched against his will and argue that the employee, consequently, remains in valid status during the bench period. Skillful and experienced immigration lawyers know how to present the correct evidence to the USCIS to prove that the H-1B employee mitigated his damage by seeking H1B transfer timely, that the employee was not at fault for being placed on bench, and finally to present the correct legal arguments to protect the interests of the employee. A petition filed “nunc-pro-tunc” may also be appropriate under these circumstances as well.

• When Employers Retaliate Against H1B Employees for Complaining Against Them

The regulations have introduced specific provisions encouraging H-1B visa aliens to report their employers for violations. The same regulations also prohibit the same employers from retaliating against those employees who so report them. When an employer retaliates against an employee for filing a complaint against it, the regulations allow the employee to safely transfer his or her H-1B status to another employer without repercussions. It is important to note that USCIS guidance memorandum on this topic requires documentation of the retaliatory actions taken against the employee and the original complaint filed by the H-1B holder.

Here too, the institution of the nunc-pro-tunc provisions in the regulations could be appropriate to help employees who received retaliatory treatment because they had complained against the H-1B visa employer.

The experienced immigration lawyers at Shihab & Associates, Co., LPA successfully dealt with issues relating to H-1B petitions filed nunc-pro-tunc.

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