Is H1B Transfer without paystubs possible?

Question

I have been working on an H-1B since last October with Employer A, a staffing company. I was on a client project until January of this year, and I was relieved by the client on January 20th. Employer A and I have been looking for another project, but haven’t found any so far. However, recently Employer B has approached me for an H-1 Transfer. However, Employer A has not provided me a paystub for pay-period after January 20th. Can I still transfer my H-1B with Employer B or will there be any issues in the process?

Answer

H-1B employers and employees are equally confused about this issue.Unfortunately, there is no YES or NO answer for this question. Every H-1B case is very unique, and the analysis has to be done a case-by-case basis. Giving a general legal opinion or a YES/NO answer could misguide employers and employees. However, we will analyze the situation in this case and put a few facts in front of you to understand such similar scenarios.

H-1B Status and Wages

  • H-1B status ends when you stop working for your employer in the sense that you stop performing specialty occupation duties that have been mentioned in the Labor Condition Application (“LCA”) and your H-1B petition. There are some exceptions, such as if you are an unpaid leave, sick leave, medical leave etc.
  • Department of Labor (“DOL”) and United States Customs & Immigration Service (“USCIS”) does not allow benching of H-1B employees. That means even when an employer cannot find work, technically the H-1B employee should have been paid.
  • USCIS regulations prohibit the change or extension of status for individuals who are out of status (with limited exception for certain unusual situations).

Status for H1B workers normally is demonstrated via the following:

  1. Paystubs provided by the H-1B employer on a bi-weekly or monthly basis. Pay should be in accordance with the prevailing wages reflected on the LCA and H-1B petition.
  2. An employment letter from the employer listing the job duties, wages, part-time or full-time employment, and the exact dates the H-1B employee has worked with the employer.

In an H-1B Transfer, what happens when paystubs are not available and there are potential status gaps?

If paystubs are not available, the Employer B may be able to submit the letter from Employer A in lieu of paystubs. However USCIS might not be convinced that employee has maintained H-1B status with Employer A, since no paystubs have been provided for a certain period of time.

There are three possibilities in such cases:

  1. H-1B Transfer Approved with I-94

    You might get lucky, and USCIS might show flexibility and overlook minor gaps in status when making decisions. USCIS will issue an H-1B approval notice (I-797) with an I-94.

  2. H-1B Transfer Approved without I-94 (“Consulate Processing”)

    Employer B might obtain an H-1B approval notice (I-797) without an I-94 indicating Consular Processing (“CP”). This means you you will have to leave the country, make application for an H1B visa at a U.S. consulate in your home country (preferred) and obtain an I-94 card upon reentry. If however, there are extended gaps in status, and if the Consulate Officer (“CO”) determines that you have not maintained your H-1B status for an extended period of time, you might be unable to obtain a visa to reenter the United States.

  3. H-1B Transfer Denied

    Employer B’s H-1B transfer petition might be denied. You will have to leave the country immediately, and for any amount of time you are deemed out-of-status (“unlawful stay”), the 3/10 year bar on reentry might apply, if the status gap is over 6/12 months.

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