USCIS May Count H1B Bench Time as Out-of-Status without H1B Amendment
USCIS site visit officer may report 'out of status' or unlawful presence and issue NOIR if your project has ended and no H1B amendment is pending. Beware.
We recently received a question on an H1B Amendment and NOIR situation over email that we could not verify with real documents. We are sharing the situation here just for the sake of helping the community understand that these kind of cases are possible and would not be known until shared.
Bench Time Counted as ‘Out of Status’
USCIS may count the bench time spent looking for a project as ‘Out of Status’ if the H1B Amendment was not filed for location change.
Normally, in an IT consulting company, when a client project gets over, the H1B employer asks you to either stay at home or work at their own local regional office. USCIS claims that an H1B Amendment should have been filed to notify USCIS of this material change.
Normally, employers file H1B amendment if there is a change in job duties or client location is outside of current MSA.
In this recent case, the USCIS FDNS officer gave a negative report for this person who was on bench after the client project ended.
The person was not available at the client work location mentioned in his H1B approval. The officer was informed that employee was at his home when the employer was contacted.
The employer also informed that the H1B payroll was currently run as per the salary mentioned in approved H1B LCA and hence, they are perfectly following the law.
USCIS immediately issued a NOIR – a Notice of Intent to Revoke the H1B with following reasons:
#1 Used Client Address on Bench-time Payroll
The H1B employee’s payroll was still run using the client work location as the address even though the project had ended and employee was not currently working physically.
This is unlawful as the payroll cannot use client work address if project is over.
#2 H1B employee cannot stay at Home without H1B Amendment
The H1B employee cannot stay at home or the employer’s own office, which effectively is considered his new work location without filing an H1B amendment.
This is a new level of strictness and the interpretation of the H1B laws.
In a similar case, NOIR was issued after USCIS site visit when the H1B worker was in India waiting to attend the visa interview as H1B amendment was not filed for client location change.
H1B Amendment Approved without I94
After staying on ‘bench’ for about 2 months, this person got the new client project and then filed the H1B Amendment.
Interestingly, USCIS approved the H1B Amendment but did not approve the extension of stay by claiming that the period spent on ‘bench’ was ‘out of status‘ in US. This means that the person has to leave US immediately and apply for H1B visa at US consulate in Hyderabad, India.
Attorney NOIR Response
In this case, the NOIR decision is still pending with USCIS. Attorney has responded by claiming that ‘bench’ time was not unlawful:
- The payroll run with the client work location address was a mistake by system.
- The MSA did not change and hence there was no need for filing H1B Amendment.
Please beware of these situations and carefully plan your next project. We will share the real evidence once we are able to get it and verify it conclusively.
If you would like to share a similar experience anonymously, you can write to us here or share in comments below.