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H1b transfer denied-Employer filing MTR and not paying my past dues

San Jose, CA |

My H1b transfer to the current employer is denied earlier this month and they are filing MTR but they are not paying my bonus check from Jan 2014 till March 2014 since they fear that would be illegal. My question

1. Can my employer issue my bonus check ( not this month salary but my past dues)?
2. is it illegal to pay my past dues?
3. they actually run my bonus check for the period of March 2014 till June 2014 which is the reason they say that they cannot issue for the future quarter as I am not legally working with them
4. is there any other ways to pay my bonus check? like paying directly to my landlord, sending the money to my home country bank account? any other ways?

Attorney Answers 5

  1. Best answer

    Your questions fall outside the realm and scope of Immigration law and are all labor or employment law related. You should repost at the labor or employment law section, but I suspect they wouldn't know how to answer it due to the immigration law wrinkle (MTR; "illegal").

    Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

  2. Your question is complex and I don't see all the facts here. You need to speak to legal counsel immediately. It seems from what I read that the bonus check is due from the prior employer? If this is correct then they would be able to issue the check provided it was earned by you while you were under valid H1B status with that employer. However, I am not clear about that from your statements.

    This answer does not constitute legal advice and is for general information purposes only. It does not constitute an attorney-client relationship. The information provided is based upon the information given by the requestor. In order to provide the requestor with legal advice, a legal consultation would be necessary and at such times all relevant information would need to be disclosed by requestor.

  3. It all depends upon if portability was applicable - and Employer's LCA/H-1B obligations. Schedule a consultation.

  4. In most likelihood the employer is obliged to pay the bonus if it was promised to you and you earned it. However, DOL Wage and Hour Division complaint may not work as the FLSA, with some exceptions, requires bonus payments to be included as part of an employee's regular rate of pay in computing overtime. Professionals usually cannot claim overtime. I agree with Attorney Behar. Your best approach is to contract a Employment/ Labor attorney. BTW DOL will enforce the prevailing wage if you were not paid your full salary.

    This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. You are encouraged to seek independent and private counseling for a complete review of your case.

  5. Your employment was unlawful due to transfer petition being denied. Therefore, being paid for that employment would be unlawful since you weren't authorized to work.

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