Urgent: New LCA after previous H1 petition withdrawal request sent to USCIS

[newtogc]

Hi 

 

I got recently fired and currently looking for an employer. Should the new employer file the LCA before my ex-employer sends the H1 petition withdrawal request(2 weeks) or do I have time until the H1 is actually revoked(1-2 months) by USCIS?

 

What about the actual H1 transfer process? What should be its timeline wrt the current H1 withdrawal process

Thanks

[jairichi]

From the last day of work you are considered out of status. Revocation of H1B petition is irrelevant. Being out of status you cannot legally stay in US and if a new employer files a cap exempt H1B petition it might get approved without I94.

[newtogc]

Thanks Jai

My current I94 is valid for another 2 years. But the H1 visa stamp in my passport has already expired. 

Is there a possibility for COE to be approved if I find an employer in the next few days? If I go with a counselor petition I need a new visa stamp as well(more complication)

[jairichi]

Thanks Jai

My current I94 is valid for another 2 years. But the H1 visa stamp in my passport has already expired. 

Is there a possibility for COE to be approved if I find an employer in the next few days? If I go with a counselor petition I need a new visa stamp as well(more complication)

A valid I94 is of no use if you were terminated from employer. Last day of work is last day of valid status. A week gap might not be an issue. Anything more than that will bring about approval without I94 where you need to go for stamping.

[newtogc]

A valid I94 is of no use if you were terminated from employer. Last day of work is last day of valid status. A week gap might not be an issue. Anything more than that will bring about approval without I94 where you need to go for stamping.

Thanks Jai. How early should this be done so that the new employer can file a cap exempt petition (so that I don't have to wait until Oct 2015)? Just wondering if this is done before USCIS cancels my current I-129 I can get a notification H1 approved.

[jairichi]

Thanks Jai. How early should this be done so that the new employer can file a cap exempt petition (so that I don't have to wait until Oct 2015)? Just wondering if this is done before USCIS cancels my current I-129 I can get a notification H1 approved.

A cap exempt H1B petition can be filed anytime and one can start working immediately after approval.

[newtogc]

Thanks Jai. How is a new cap exempt H1B petition ( I still have 3 years left on H1 ) different from  counselor/notification petition ( I cannot do a COE at this point of time since Im not actively employed for 2 weeks )?

[jairichi]

Thanks Jai. How is a new cap exempt H1B petition ( I still have 3 years left on H1 ) different from  counselor/notification petition ( I cannot do a COE at this point of time since Im not actively employed for 2 weeks )?

In your case it will be a cap exempt H1B petition and since you are out of status it will be filed as consular petition.

[newtogc]

Hello Jai /Attorneys

My new employer filed LCA within 30 days of my last date with the previous employer.  My understanding is that if the new H1 petition reaches USCIS before my previous employers withdrawal petition there is high chance of transfer without having to go out for stamping. Will premium processing improve my chances for direct transfer?

 

Thanks!

[jairichi]

Hello Jai /Attorneys

My new employer filed LCA within 30 days of my last date with the previous employer.  My understanding is that if the new H1 petition reaches USCIS before my previous employers withdrawal petition there is high chance of transfer without having to go out for stamping. Will premium processing improve my chances for direct transfer?

 

Thanks!

Unfortunately your understanding is wrong. H1B petition revocation does not matter. Since you were out of status for some time now USCIS will send a RFE for latest pay stubs which you cannot provide and based on that new employer petition will be approved as consular processing.

[newtogc]

Thanks Jai.I now understand it clearly.