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  1. #1

    Unhappy Need to Go to India Urgently and Client Ending the Contract

    I am working for an Indian consulting company and they hold my H1B visa . I am working as a contractor on a corp-to-corp basis at client location. My mother-in-law had heart attack and I need to go to India urgently and when I informed this to client they are ready to terminate my contract as they are not sure if I will return back. My previous H1B visa stamp got expired, but my current H1B I-797 is valid till Feb 2013. I MUST go to India and my question is will I be able to come back to USA again on H1B? Please help!! veryy urgent!!

  2. #2
    Join Date
    Sep 2010
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    19,901

    Default Re: to Go to India Urgently and Client Ending the Contract

    On an H1B, yes. On the current H1B? That's invalid as soon as the sponsoring company terminates your employment.

    I suspect highly you contact a immigration lawyer. Even your existing H1B use appears to be in STARK VIOLATION OF THE US IMMIGRATION LAW.
    H1B sponsors are not supposed to be body shopping people out as contractors. When this comes to light, you will most likely not only not be admitted, but will be subject to a bar.

  3. #3
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    Default Re: to Go to India Urgently and Client Ending the Contract

    If you work for a company that has clients, and thus work at their clients' locations, nothing's suprising about that on a H1B. If you're effectively subbed out, and benched without pay when your employer doesn't have a client for you to work for, that's improper. ("Benched without pay" = "laid off" = "You're supposed to pack your bags and return home.")

  4. #4
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    Sep 2010
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    Default Re: to Go to India Urgently and Client Ending the Contract

    It's even more restrictive than that bullwinkle. While not paying the employee while on the bench will be a sure sign of illegal activity, body shopping is still a violation even if the employer supports the employee between jobs.

  5. #5
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    Default Re: to Go to India Urgently and Client Ending the Contract

    The USCIS finally got around to clarifying its rules just over a year ago, Rocky. There must be a valid employer-employee relationship between the employer and the H1B employee. If all the employer is doing is subbing out the H1B employee to another company to fill its staffing needs, with the employee reporting to and taking direction from the management of the client company, that's a problem. But it remains possible for a H1B employee to perform off-site work for an employer at a client's facility. In essence there's now a right of control test:

    1. Does the H1B petitioner supervise the H1B employee / worker and is such supervision off-site or on-site?
    2. If the supervision is off-site, how does the H1B petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
    3. Does the petitioner have the right to control the work of the H1B worker on a day-to-day basis if such control is required?
    4. Does the petitioner provide the tools or instrumentalities needed for the H1B worker to perform the duties of employment?
    5. Does the petitioner hire, pay, and have the ability to fire the H1B employee?
    6. Does the petitioner evaluate the work-product of the H1B worker, i.e. progress/performance reviews?
    7. Does the petitioner claim the H1B employee for tax purposes?
    8. Does the petitioner provide the H1B worker any type of employee benefits?
    9. Does the H1B employee use proprietary information of the petitioner in order to perform the duties of employment?
    10. Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
    11. Does the petitioner have the ability to control the manner and means in which the work product of the H1B worker is accomplished?

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