Fresh Graduate H-1 Transfer issue: URGENT

[samyboy]

I am an Indian citizen and have just completed my MBA last spring. I was just wondering if I can get some guidance from you regarding visa issues. I was on F1 visa during my MBA and have been on OPT (Optional Practical training) since then which is valid for 1 year (May, 09).

Also I was sponsored by a company for my work authorization and have got H1-B visa as well which have started from Oct 1st. the firm is a consulting firm which places it's employees on client projects. I have a I-797 form with me which is the notice of approval of my H1-B visa with that firm. Also attached with I-797 is my new I-94 as well.

Now as from Oct1st my visa started, I have some doubts/queries regarding the same:

My employer is not ready to put me on pay roll since I am still on bench and he is not able to find a project for me as of now. I wanted to know if it's mandatory for me to be on a payroll once my H1-B visa starts from Oct1st and if yes would I loose my visa status if he doesn't give me any pay?

Is their a provision of "Leave without pay" so that he doesn't have to pay me till the time I am not on a project and I can still have a valid visa status.?

Is it the case that from Oct1st I will loose my OPT status and would be automatically transferred to H1 status. If yes, would it be possible for me to come back to my OPT status if my H1 status is revoked in above mentioned situation.?

If my H1 status is revoked and I apply next year for the H1-B visa would my application be a part of lottery again (the cap of 20K for masters)?

Do I require pay stubs from my existing employer to transfer my visa if I join another company with in the month of October?

Would I be requiring pay stubs to get my H1-B visa stamped if I want to leave the country and come back after stamping?

Also one last question and very important for me is that I have an employer who is ready to transfer my visa but he is paying me a lower salary then what my existent employer has shown on my current H1-B petition. Can an H1 transfer be possible on a lower salary compared to what you are getting now?

Do I have a risk of getting it cancelled and loosing my visa status?

How long does it takes to get the new 1-797 (approval notice) in case of visa transfer. i know it takes 1 week to get the receipt.

Also i have to go back to india in end of november. I still haven't stamped my visa from my current employer. I am also starting this visa transfer process from this week onwards. please guide me how should i proceed with this, what all documents do i need to have before i should leave and ensure that i can get back into US afterwards. I need to transfer my visa as well. Should i wait for the approval notice and then leave or can i leave, get the visa stamped in INDIA based on previous employers I-797 and come back to US to start working for the new company.?


I would really appreciate if you can throw some light on the above mentioned issues and guide me what best can I do in this situation.


I would be really grateful for your help and guidance.

regards
Samiboy

[Ron Gotcher]

It appears that you moved into H1b status on October 1st and you are no longer an F1. What your employer is proposing is illegal. They have to pay you. You have a couple of choices. The best option is if you still have a valid F visa. If you do, go to the border with your OPT I-20 and re-enter in OPT status. If you can't do that, you can try to find another employer to petition for you. If you can do this before the end of the month, you should be OK. When you receive a change of status, you have 30 days to report to work for the new company. Since you haven't used that up yet, you won't have to show pay stubs.

[samyboy]

Hi Ron,

Thanks for your reply. It really really helped.

If i go out of US would i be able to come back based on my OPT. What all documents i need in that case? Isn't it that once the H1 visa starts your OPT expires? My F1 visa expires in 2011 but i have an OPT which is good till May,09.

Also if i do so would i be still having my h1 or do i have to go to the lottery next year again.

I can definitely do the first option but i have to go back to india for 1 week in end of nov. And i have another employer who is ready to petition for me.

Should i petition for transfer of visa with my new employer before end of this month and request him to not to submit COS form so that once i go out of US in nov end, i can come back showing my OPT and approved I-797. Would that work?

Please guide me.

regards
Samyboy

[Ron Gotcher]

You will need to use your F1 visa and your OPT I-20.

[samyboy]

Thanks Ron.

One last quick question.

Right now my desi consultant has filed my H1 for 60K but the other company i am interested in is ready to pay me just 35k.

I was just wondering if there is any minimum wage on which an H1 visa employee needs to be hired. The company is based out of new jersey.

regards
Samiboy

[Ron Gotcher]

Any petitioning H employer must pay the prevailing wage in the area. I very seriously doubt that $35K is anywhere close to the prevailing wage.

[samyboy]

He says that since it's a sales job he will give 35K as base and 20K as commissions based on performance but no guarantee.


Is it possible if he sends the petition for 55K to get the approval and then just gives me 35K.


So how can i find the minimum wage in New Jersey area? Is their an online database.

[Ron Gotcher]

The H1b LCA requires a guaranteed minimum salary that meets or exceeds the prevailing wage.

[samyboy]

Ron your suggestions have really helped me a lot. One quick question.

I got another employer who is transferring my visa ti his company and i am providing all the documents to him. In the meantime i would like to visit india before joining him.

Can it be possible that i can stamp my visa in India based on my present employment with the pay stubs i have from my present employer and at the same time initiate visa transfer process here in US to new employer. If yes, what all documents do i require from new company in order to do that and enter back in US.


Thanks a ton-
Samyboy

[Ron Gotcher]

You can get a visa based on your existing approval and then re-enter with the new approval notice or the receipt for the filing of the new petition.