lack of wages/pay stubs on H1B

Hi Saurabh/forum:

I just got my H-1B visa approved and stamped in Delhi and will be coming to the US at the end of September. I am working for a Business Consultant Company (my position is a management analyst)... So, my consultant agreement contract says that I will only be paid if the 'client' pays my employer for services rendered. I understand that by law, the employer is expected to pay me regardless of whether the end client pays my employer? 

So if the client doesn't pay my employer, thereby the employer doesn't pay me, my end of year tax returns will obviously indicate that I have no income even though I have been present in the US since October 1, and should have been paid for my time.. Will USCIS look into this? I don't want to get my employer in  trouble since I respect the owner very much but want to know if this can potentially be an issue. 


Also, will this affect  my chances of potentially transferring my H-1B if I find another employer? ie Pay stub issues?

You cannot stay in US with Payroll on H1B. There is no concept of Bench.

The days you are not paid you will be out of status. If you become out of status for more than 180 days it will result in debarrment for 10 years.

You can transfer your H1B in India or US to other sponsor if you like to do it.

thanks for your answer… My dilemma is that since my employer is a Management Consultant organization, my job will entail meeting with clients face to face, meeting at the clients business site, so I order to find and sign clients, I will have to be physically in the US. suppose, I go to the US at the end of September and search for clients (with my employers help), and if nothing turns up in a month or 2 months, I come back to India… is that a possibility? that would mean I’ll only be 30 or 60 days without pay…will that be a major issue (ie resulting in debarment)?

While you are searching for clients for those 2 months, your employer should still pay you the salary as per the LCA. When they filed LCA they confirmed to DOL to pay you at least that salary. It wasn’t dependent on you finding clients etc.

So if you get paid for those 2 months, and then return to India, you are fine. You should also receive W-2 for the year and file appropriate taxes.

Thanks Saurabh, you have been extremely helpful. just wondering if you could answer a few more questions:

  1. my current LCA indicates a full-time position with an hourly wage method of payment… is there a way to possibly amend my current petition and change it to part-time? that will reduce the burden on my employer (since it is a fairly new company), ie. it is more likely that they can pay me part-time as opposed to a full-time position… if the company grows, then I can possibly go back to Full-time with my employer. Is this a possibility? If yes, will I have to pay for a completely new petition?

  2. Suppose I enter the US, work for 2 months, but I don’t get paid for it. Then I return home and I am able to find another employer to sponsor me, I understand that I’ll need a brand new petition to be filed for me… so if I find a new employer, while at the same time my visa stamping from my previous employer has not expired, will I have to have another interview and get a new visa stamped on my passport? Can my previous employer keep my petition active (not revoked or terminated), so that I can go back and work for them again (if the situation calls for it ie. my new company doesn’t pan out)

  3. A question similar to #2, suppose I work for 1-2 months and get paid for it, but my employer isn’t able to keep me on due to financial reasons… if I return home, find a new employer, file a new petition, do I need to have another visa interview and new stamping, if my previous visa stamping has not expired yet?

thanks, I really appreciate your help.

  1. A new LCA needs to be certified followed by H-1 amendment for part-time position. I am not 100% sure if you can only work on part-time H-1. Your attorney can confirm.
  2. You can return on new petition and old visa stamp. It is not mandatory to get the visa stamped from new employer.
  3. Same as 2.

If you are inside US, then you need to get paid. If you don’t get paid then you are not maintaining legal status inside US which can cause issue in future petitions and visa stampings.