Can we file an H-1B change of status petition on behalf of an alien who came in to the US illegally, i.e., without a visa?
No, you cannot file a change of status because the person does not have a “status” to change from. However, you can file an H1B petition for Consular processing, which means the person has to leave the US and get the visa stamped abroad. But departing the US may trigger 3/10 year bars, depending on how long the person stayed in the US illegally. It is important to discuss your options with an immigration attorney. My employer has told me that they have to “bench” me because there is no work for me, and would pay me my living expenses only, i.e., not my full salary. What can I do about this? The employer is required to pay you your wages as per the Labor Condition Application even if they have no work for you. You can report any violations to the USCIS or to the Department of Labor. More information is available at DOL web site.
