Compliance

Government Shutdown – Impact on Immigration Matters

1. Our employees are deployed at government sites. Are we still obliged to pay the H-1 wage? 2. Can we ask such employees to use their paid leave?

A1. Yes. In my view, that obligation continues unabated.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Ability to Pay

1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence? 2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability? 3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status? 4. Why are prorated net assets not sufficient evidence to support ability to pay? 5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?

1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.

2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Compliance

These videos are a part of series of Continuing Legal Educaion seminars delivered by Rajiv to various lawyers' groups. These provide an overview of how immigration law affects lawyers, business owners, HR and others in the work environment. If you would like us to provide informational conversation to your group, please contact us.

Immigration Law : 

Out of 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'

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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H1B Status

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.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Importance of having continuity of employment/pay stubs

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.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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