I am on H1B and my project got completed in the month of May 2016. After that my employer has not paid me on bench since June 2016. In the meantime one of the other employers initiated my H1 transfer and I got my receipt notice with him in July 2016 and the second employer started marketing my resume since then. I have not yet moved to his payrolls and was waiting on a project confirmation to resign from the first employer.
Now all of a sudden I got a termination notice from my first employer indicating that he received the information of my H1 transfer to a different employer. He has also indicated that he is going to revoke my H1 petition. In this context, I have the below queries and would be very helpful for your suggestions and advice:
Since I am terminated now by first employer, can I ask my experience certificate from the first employer for all the years I have worked with him? If yes and if the termination cause is indicated in the experience certificate, will it cause any effect in my future employment or in my green card processing in future?
I don’t have the H1 approval copy yet with the second employer and I just have the H1 receipt notice so will the H1 revocation by first employer cause any issue with my H1 approval of the second employer?
Since I have not started working with my second employer yet and since my first employer was not paying me on bench, I have no paystubs for the last 3 months so can I complain about this to DOL as my first employer has not paid me from June till my termination date or Will this cause any issue as my first employer blames me for transferring to a a new employer and that was the termination cause he indicated?
Please advice me with your valuable suggestions as always.
You can ask for the experience letter. Even if the experience letter has the reason, it won’t impact future green card. During green card processing, requirement is to get a different type of experience letter (which includes information about detailed jobs and responsibilities as related to green card job).
No issues. You should move to other employer’s payroll ASAP.
Exactly. You should do this. Tell the employer that you plan to complain to DOL as they violated labor laws by not paying you. If they are willing to pay you the back wages, then that’s the end of it. If not, complain to DOL. You also need payslips for successful approval of your H-1 transfer. You are currently not in valid status (payslips) and your H-1 transfer may result in RFE and possible approval w/ consular processing. Did your new employer/attorney explain this to you?
With the third query above, yes my new employer did indicate that I may get an RFE due to the lack of pay stubs. So I am planning to approach my old employer for my 3 months bench pay and would then approach DOE if the old employer rejects to pay me the back wages.
Also please let me know if in case there is an approval of my new H1B with consular processing, can I leave the country and come back to US on my previous stamped H1B Visa, as I have a valid H1B visa till June 2018 but that was stamped with my old employer. So in this case if I leave the country and come back, Can I travel back to US on my old Visa and show my new I797 copy of the new employer at the POE or do I need to go for a fresh Visa stamping with the new employer H1 petition?
Thanks again Saurabh for all your valuable suggestions. Appreciate all your effort and time.
So that means the revocation of my H1 B petition from my old employer will not have any effect on the H1 visa stamp I had with him and I can use the same Visa stamp even if I change my employers in between but the only thing is I need to have a valid H1 visa and an approved petition at the time of travel back to US right?
Also I have one more query with my current situation. I spoke to my new employer and he says he will start supporting my payroll from this month and he is ready to pay for the entire month of September starting from 01 Sep 2016. In such case, if I get my employment letter from my old employer with termination date as 16 Sep 2016 then will it cause any issue with the overlap of employment periods between my old and new employer as I have not resigned with my first employer or is it fine because I don’t have any paystubs with my old employer and he has not anyways paid me from last 3 months? Does it cause any issue legally if one moves to a different employer on papers without resignation from the previous employer?
In such case as mentioned above, if I approach DOL against my old employer, I assume I should complain only about the period for which I don’t have any pay stubs I.e.till 31 Aug 2016 as my new employer is ready to pay me starting 01 Sept. Please let me know if my assumption is correct here.
Also let’s assume if there is an RFE on my H1B with new employer some time next month and if it is regarding the paystubs as I was not having the paystubs at the time of my H1 receipt notice then can I submit my latest pay stub for Sept month while responding to the RFE as my new employer is ready to pay starting this month or Do I need to provide the old paystubs only which I anyways don’t have ?
Even if the employment dates overlap, it should be ok to get current employer’s payslip from Sep 1 onwards
This may be tricky as the old employer may tell DOL that you submitted resignation on XX date and not Aug 31. Not sure if DOL and USCIS will share the data on this or not. Maybe ask new employer’s attorney about this.
You would need payslips from previous employer. If they pay back wages after the DOL complaint, you can use that in lieu of old payslips. The expectation is 3 payslips before the transfer petition was filed.
With the third query in my above comment, I have not resigned from the service anytime and it was my first employer who terminated me on 16 Sep 2016. He was not paying me since June 2016 and my new employer is ok to pay me from 01 Sep 16 so when I complain to DOL, then shall I ask my old employer for the back wages only till 31 Aug 2016 or for the entire period till my termination date. If it would cause any issue then I would probably ask my new employer only to pay me from Date after my termination date of my old employer. Just wanted to check with you also about this.
As suggested by you, I will also once speak to my new employer on this.
Also one quick question. In general, is it legally ok to move to a new employer without resigning from the old employer or is this considered as something illegal to join a new employer without resigning from the first one?