FAQ: I’ve Been Benched and Have No Pay Stubs. Can I Change My H-1B Visa?

April 25, 2009

Question 1: I’m an H-1B employee and I have benched without pay, but I have found a new employer. I have no pay stubs. Can I “transfer” without leaving the U.S.?

Question 2: I’m an H-1B employee and I was benched without pay, but when I complained my employer fired me. I have found a new employer, but have no pay stubs. Can I “transfer” without leaving the U.S.?

Answer: The answer to both questions is maybe.

In this article, we explain a regulation that may enable you to change or extend your visa without leaving the United States even though you have not maintained your status .

H-1B “Transfers” and Maintenance of Status

To change or extend status (a.k.a. “transfer” as it is sometimes misnamed), the H-1B employee must have maintained status. In the context of an H-1B visa, maintaining status includes maintaining the employer-employee relationship with the H-1B employer sponsor.

If the H-1B employee has not maintained status, he cannot seek the extension of stay (e.g. change to another H-1B employer) or change of status (e.g. change from H-1B to H-4) from within the U.S. Rather, he would have to leave and if the application is approved, re-enter on a valid visa (whether a new visa needs to be obtained depends on the circumstances).

This requirement to maintain status is what underlies the USCIS requirement for pay stubs and other financial proof of having been paid. Those who have been benched or fired don’t have pay stubs.

There is a useful regulation, however, that may help these H-1B employees change their employers or change their status without leaving the United States.

Extraordinary Circumstances

Regulations give USCIS the discretion to approve extensions [8 CFR 214.1(c)(4)] and changes of status [8 CFR 248.1(b)] without requiring the employee to leave the United States when the visa holder has been out of status due to “extraordinary circumstances beyond the control of the applicant.”

What constitutes an “extraordinary circumstance” is not defined. An example that comes to mind, though, is a serious illness that keeps the person bed-ridden for a long period of time.

In previous guidance, USCIS has said a lay off is not automatically considered an “extraordinary circumstance” warranting a forgiveness of the failure to maintain status. Benching without pay or retaliatory termination, however, may qualify depending on the circumstances.

When reviewing requests for forgiveness due to “extraordinary circumstances,” some of the factors USCIS will consider include the reason the employee did not maintain status, for how long the employee was not maintaining status, and what the employee did about it (e.g. for a benched employee, did you complain about not being paid or say nothing?).

We must emphasize that there is no guarantee USCIS will apply this regulation to your case. This regulation gives USCIS the option, but not the requirement to forgive status problems. USCIS can decide your situation does not qualify and deny the extension or change of status.

Whether you are a good candidate for seeking relief under this regulation depends on the circumstances of your case. Because every person’s situation is unique, if you have not maintained status, even if you believe it was not your fault, you should immediately seek competent legal advice before taking any action to determine all the legal options, and the best strategy, for your particular case. 

Additional Information

For more articles about your immigration options, please visit our blog’s main page at or the website of our law firm V.K. Vandaveer, PLLC site. For information about Legal (Attorney) Services for foreign nationals, please visit here.  

In addition, please see our related article Will I Be Deported If I Complain Against My H-1B Employer?  as well as other articles related to H-1B employee rights on our companion blog H-1B Legal Rights.


LLC? LLP? Inc.? Choosing The Right Structure For Your Business

April 14, 2009

Today’s post is written by guest author Kenneth Sprang, a corporate and international business transactional attorney based in the Washington, DC area.

In recent years the LLC has become the darling of entrepreneurs and small businesses around the country. But the LLC is not always the best choice. Sometimes a Subchapter S corporation or another structure is preferable. This article helps you choose the right structure for your new business.

Determine Your Long Term Goals

Is your goal to create a company that will grow and then go public, or be sold to a larger company for millions of dollars, or do you intend to run a small family business where you, members of your family, and perhaps a few trusted associates will be involved? Will you operate primarily in your home state, or will your focus be national or international? These questions are critical in deciding how to organize your new business. For example, if your goal is to be acquired or go public, you probably want to create a “C corp.” If you and a few friends or family members are creating a business that will not expand, at least in terms of owners, an LLC may be perfect. On the other hand, you may want the formalities of a Subchapter S corporation.

When to Use an LLC

LLC’s and corporations both insulate the owners from liability. An LLC has “members” rather than shareholders. The members can run the company or have one or more “managing members” do so. The LLC is an excellent tool for holding rental property–I recommend that each building be held by a separate LLC so that any liability is limited to that building. If your company is going to have only a few owners or members, an LLC may be ideal. The paperwork is somewhat simpler than a corporation (though many states allow “close corporations” in which the shareholders run the organization just like members of an LLC). The LLC is usually a good substitute for a sole proprietorship. Note that all income from the LLC will be treated as ordinary income and subject to FICA and income tax. Although you can elect to have an LLC taxed as a corporation, generally the LLC is taxed like a partnership or sole proprietorship and profits are distributed to the members and taxed as ordinary income.

When to Use a C Corporation

A C Corporation is a garden variety corporation with no limits on the number of shareholders it can have. If you want to grow your shareholders and maybe go public or be acquired, a C Corporation is generally the best choice. The local XYZ Store can be a C Corp, and IBM is a C corp. When creating a C Corporation, you will need guidance on how many shares to authorize and how many shares to issue. This is true for both a C corp and a Subchapter S Corp

When to Use a Subchapter S Corporation

If you create a corporation, you may file a form with the IRS asking to be treated as a Subchapter S Corporation. In order to qualify, the number of shareholders must be limited and no shareholder can be a corporation. The advantage of the Subchapter S Corporation is that profits or losses are passed directly to the shareholders and the corporation itself is not taxed. With a Subchapter S, you can pay yourself a salary but distribute some profits as dividends, possibly avoiding self employment tax on some income..

Where Should I Organize My Business?

Generally speaking, you can organize your business in any state where you have an actual presence. That can be the state where you live or it can be a state where you have an office. Many companies organize in Delaware, because Delaware does not require companies to have a physical office in Delaware. You can have your registered agent there serve as your office. There are three things to consider: First, where do you have a physical presence. Second, what are the franchise or similar fees charged in the states you are considering. For example, CA charges $800 a year, while Delaware charges less than $200 for a small company. Finally, in what state will your business be taxed and what are the tax rates there? If you can organize and operate your business in a state with lower tax rates, that is usually an advantage.

 Mr. Sprang is a corporate and transactional lawyer with special expertise in labor and employment law.  He represents business clients throughout the United States and in Europe. He can be reached at: DC International Counsel, 5335 Wisconsin Ave., NW, Suite 440, Washington, DC  20015, (202) 895-1504, Fax: (202) 403-3644;




Weird Science: Maddening Visa Policies For World’s Brightest And What You Can Do About It

April 12, 2009

On the heels of yesterday’s post about the proposed STAPLE Act, today the Washington Post ran a timely article discussing a related obstacle faced by the world’s brightest minds, who would prefer to use their expertise in the United States but due to ill-conceived visa polices and procedures find it all but impossible to do so.

The article, headlined “U.S. Visa Delays Distress Scientists,” talks about the plight of foreign talent eager to get back to work, but who are stuck in their home countries waiting to emerge from the background check black hole so they can get a visa to re-enter the United States. (To read the article you will have to register to read the article, but to do so is free. If you don’t want to register, use a log-on from a site such as http://www.bugmenot.com).

It doesn’t take a genius to figure out the consequences such obstacles are having and will have on scientific research and advancement in the United States. Experts don’t want to sit idle waiting for the U.S. government to decide whether they are worthy of a visa, and research institutions can’t simply put projects on hold until the experts arrive.

Innovation will go elsewhere.

If you want to bring back some common sense and balance to U.S. immigration law, contact your Senators and Congressmen. To learn more about the issues and how to contact your representatives, check out AILA’s Legislation and Advocacy pages, most of which do not require a password to use. Also see AILA’s advocacy arm AILFand AILF’s policy site for additional information, both of which are free to access.

New Bill Proposes Unlimited H-1Bs and Green Cards for STEM Ph.Ds

April 11, 2009

A new bill is circulating Congress that would allow foreign students who earned Ph.Ds in certain fields from universities in the United States an easier path to employment and a green card.

H.R. 1791, called the Stopping Trained in America Ph.D.s From Leaving the Economy Act of 2009 (aka ‘STAPLE Act’), would eliminate numerical limitations for green cards and H-1Bs for foreign nationals who earned Ph.Ds in science, technology, engineering, or mathematics (STEM) and have a job offer. The goal is to stop the reverse brain drain caused by the United State’s current immigration policies that thwart the ability of many of those holding these desirable STEM degrees from staying here and putting their talents to use.

In 2007, foreign nationals earned 34 percent of the doctorates awarded, most of which were in the STEM fields. In fact, in most STEM fields, foreign nationals represent the majority, outpacing their American counterparts who prefer non-science fields. For example, 30.3 percent of the degrees in engineering were awarded to foreign nationals and only 8.1 percent went to U.S. citizens in 2007, according to a study by the National Opinion Research Center headquartered at the University of Chicago.

When the new bill was announced, news sites and blogs targeting Indian readers lit up with excitement. One main reason for the attention from Indians is that these students would greatly benefit from such a program because they make up a large group of foreign nationals earning STEM-based Ph.Ds in the United States. Chinese students also account for a large percentage of Ph.Ds earned from American universities.

These two groups in particular are experiencing four- and five – year backlogs, and longer, for employment-based immigrant visas for those holding advanced degrees.

The bill was introduced March 30, 2009 by House Republican Jeff Flake from Arizona and has been sent to the Judiciary Committee for review. We will update our readers on the progress of this bill. Please note, every year many bills are introduced in Congress, but most either die or are revised for better or worse before becoming law.