Immigration Issues/H1B COS


hi Eileen

My status changed F1-H1B on 1st October. I got employer's email stating that the Client has cut off openings; they are finding placements at other site. As on date, no project, no enrollment on payroll. I plan to wait for another 3 weeks, if no work till Nov 21, I will leave US in the last week of Nov (Well before 30th Nov).

My Questions:

1. If the current employer is able to find an alternative placement, would it be advisable to demand the back wages from the start date of H1B (i.e from 1st Oct). especially if the same has the potential to raise a query at future visa stamping, with the current petition?

2. Would an alternative client if found by current employer, require an amended LCA/H1 petition because of possible change in work site?

3. Meanwhile if another employment opportunity comes my way in next 3 weeks, what are the chances of the second petition approval for an extension of stay?

4. In case of "no project by current employer" and "no second employer found" by Nov 21, will this 50 days time after 1st Oct (without productive work) adversely impact any NON-IMMIGRANT VISA STAMPING at a later stage?


Eileen Chun-Fruto, Los Angeles immigration attorney writes:

Dear Kiran,

1.  As far as back wages are concerned, that is a Dept of Labor issue.  If DOL finds you are owed backwages, you might be awarded your wages, but I think your greater problem is having violated your status by being in the US and not working, regardless of whether that was your employers fault or your own.

2.  Perhaps.  

3.  Chances are getting slimmer by the day.  USCIS is very skeptical of extension of statuses for exactly this reason, that is H-1B holders not working because their employers have not provided employment.  There is a "no-benching" rule against this and it is an unforgiving one.

4.  Absolutely so.

Bad news all around.  Sorry and good luck.

Eileen Chun-Fruto

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Eileen Chun-Fruto


I can answer any employment-based immigration question including questions about PERM labor certifications, H-1B skilled workers, L-1A multinational managers or executives and L-1B specialized knowledge, R-1 and I-360 religious workers, investor cases (E Treaty Trader and E Treaty Investors and EB-5 "million dollar investors") and O-1 extraordinary ability cases. I can also answer any questions regarding family-based immigration, such as adoptions, waiver cases, consular processing (using foreign consulates to enter as an immigrant), marriage and fiance/fiancee cases, 245(i) cases, VAWA (Violence Against Women's Act), battered spouses, and Child Status Protection Act (CSPA).


I have over 12 years of experience in business and family immigration. I was a former law clerk for the Executive Officer for Immigration Review (the immigration courts) in San Francisco and I current serve as the California Service Center's (CSC) liaison on behalf of the Los Angeles County Bar Association. I represent individuals and corporations alike, ranging from professionals in the high tech, science, liberal arts fields. I have a special niche in working with start-up companies and individuals with more complex immigration issues.

Member, American Immigration Lawyers Association Member, Los Angeles County Bar Association, Executive Committee on Immigration

J.D., University of California at Davis - King Hall School of Law (1997) B.A., University of California at Irvine, cum laude (1994)

Awards and Honors
2005, 2006, 2007, 2008: Selected to Southern California Rising Star - Super Lawyers List (an honor shared by no more than 2.5% of the attorneys practicing in the entire Southern California region) Faculty/Moderator on various AILA and LACBA continuing legal education seminars in the following topics: H-1B, O-1, religious workers, business immigration visas

Past/Present Clients
My typical business clients can range from a start-up company, established engineering and software research and development companies, manufacturing, trade and distribution companies, public and private schools, and religious organizations. Family clients include spouses, parent-child petitions, siblings, naturalization, and most especially, representation of abandoned and neglected children viewed as orphans under the immigration law. I have represented many clients who relied on special provisions of the immigration law to preserve or "grandfather" benefits to family members in limited (and complicated) circumstances, to avoid re-application fees and longer waiting times.

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