RFE and Lost Job : Kindly Help

[RajaReddy]

Hello Experts,

I am in USA since last 10 years and have 'never been out of country' since then so never any of my H1b extension was stamped after the first one when I entered the country 10 years back. My last H1B extension is valid up to 2020 that was issued based on the approved I-140. Last year in July, I changed my client and location that required to file for H1B amendment. I got RFE 2 months back for proving job to relate with the bachelors degree requirement. My employer filed the RFE response 2 weeks back and response awaited. Last week I lost this job and now searching for another job. Kindly help the following to answer all 3 questions please:

(1.) In the current scenario, am I authorized to stay for 60 days (from my last working day) and search a new job ? 

(2.) If my H1B amendment gets rejected then I will be required to leave the country immediately or I can still stay for 60 days to search job ?

(3.) If I have to leave the country to go back to India, what all documents will be required to have at airport ?

Kindly Help !!!!!

 

 

[xTDx]

For critical issues like this, please consult a qualified immigration attorney. 

1: Yes

2: I am confused on this. If you have lost your job, and h1b amendment gets approved, will the employer hire you back or find a new location for you ?  If it gets rejected you can work for older lca/location as you have a underlying petition valid until 2020 if that job is still available. 

3: All you need is a indian passport or valid Indian visa or ability to get one if you have lost it or something. Try to get a direct flight to India assuming India is your home country. Airlines may not let you onboard a flight that goes through some of the european countries if you have an expired USA visa. 

 

[RajaReddy]

Thank you so much for your kindness to reply all the 3 questions. You are too kind, highly appreciated. I need some clarification regarding your response for the 2nd question. Kindly guide.

2. Even if H1B amendment gets approved this end-client will not hire me again for the project and chances are thin to get project back to my last LCA/Location/end-client).  I am already searching for a new job with a new end-client as my project (for which amendment is filed) ended last week only. Kindly help me to know

(a.) if the H1B amendment gets rejected then even can I stay here in USA for 60 days (from the last week when the project contract ended) ? 

(b.) As I have not been out of country since last 10 years when I first came on H1B work visa so if H1B amendment is rejected is any possibility to get issued NTA ? Just asking please to avoid risk and if I should go back to India right now to avoid any these NTA related consequences.

I apologize for another question but kindly guide me with your best knowledge being an expert.

 

 

[joe30]

You have H1B until July 2020 with Consulting Company A for client P. As long as Company A does not withdraw your i-129 petition, you would still have H1B status, irrespective of your H1B amendment for client Q. In case the amendment gets rejected for client Q, w.r.t USCIS you are still working for the client P. They might send a NOID for the earlier approved H1B at any time or they chose not to send it. You can search for a new job without any hesitation about your immigration status. But, sooner the better as your client P position no longer exists, incase USCIS sends NOID, you will have a new H1B amendment to apply. But there is a caveat to this, you should be continuously get paid by Consulting company A to be in H1B status. USCIS should not issue a NTA for you as you have valid i-94 till July 2020.

Incase your H1B has been withdrawn by the company which holds your H1B, you would have 60 days time to find a new employment before you would accrue illegal stay, as you have i-94 validity till July 2020.

[JoeF]

6 hours ago, joe30 said:

You have H1B until July 2020 with Consulting Company A for client P. As long as Company A does not withdraw your i-129 petition, you would still have H1B status, irrespective of your H1B amendment for client Q. In case the amendment gets rejected for client Q, w.r.t USCIS you are still working for the client P. They might send a NOID for the earlier approved H1B at any time or they chose not to send it. You can search for a new job without any hesitation about your immigration status. But, sooner the better as your client P position no longer exists, incase USCIS sends NOID, you will have a new H1B amendment to apply. But there is a caveat to this, you should be continuously get paid by Consulting company A to be in H1B status. USCIS should not issue a NTA for you as you have valid i-94 till July 2020.

Incase your H1B has been withdrawn by the company which holds your H1B, you would have 60 days time to find a new employment before you would accrue illegal stay, as you have i-94 validity till July 2020.

Company A is required BY LAW to inform USCIS that the OP no longer works there. Otherwise, they have to continue paying him. No sane company will do that, so the OP can be sure that the H1 is revoked.

The OP has 60 days from the layoff to find a new job. After that he is out of status, and the new NTA memo would apply.

[joe30]

On 7/19/2018 at 9:23 PM, JoeF said:

Company A is required BY LAW to inform USCIS that the OP no longer works there. Otherwise, they have to continue paying him. No sane company will do that, so the OP can be sure that the H1 is revoked.

The OP has 60 days from the layoff to find a new job. After that he is out of status, and the new NTA memo would apply.

Yes Company A must inform that the beneficiary does not work at Client P any more. It is not same as withdrawing the i-129 petition. RajaReddy's initial post mentions that he has approved i-140, that means that, he has been with the Company A for very long time. Every consulting firm will have a maximum allowed bench period between assignments, without losing their profit margins.

I am only giving RajaReddy an opinion and advice based on the valid facts. I clearly stated my assumptions. But he never mentioned that Company A has revoked his H1B which is valid until 2020.

[JoeF]

6 hours ago, joe30 said:

Yes Company A must inform that the beneficiary does not work at Client P any more. It is not same as withdrawing the i-129 petition.

It is essentially the same, since USCIS will revoke the H1 petition upon receiving notification from the employer. That is what informing USCIS is about. In other words, the H1 petition is no longer valid. So, any other assumptions are wrong.

As far as the company being required to pay the person if they don't inform USCIS, that's a DOL rule. Some companies who didn't inform USCIS had to pay 3 years of salary to the beneficiary of the H1.

https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation."

 

[RajaReddy]

22 hours ago, joe30 said:

Yes Company A must inform that the beneficiary does not work at Client P any more. It is not same as withdrawing the i-129 petition. RajaReddy's initial post mentions that he has approved i-140, that means that, he has been with the Company A for very long time. Every consulting firm will have a maximum allowed bench period between assignments, without losing their profit margins.

I am only giving RajaReddy an opinion and advice based on the valid facts. I clearly stated my assumptions. But he never mentioned that Company A has revoked his H1B which is valid until 2020.

I apologize for the delayed response. Kindly let me clarify, company A is holding my H1B visa since beginning last 10 years and they are still holding my H1B which is valid up to 2020.

[RajaReddy]

15 hours ago, JoeF said:

It is essentially the same, since USCIS will revoke the H1 petition upon receiving notification from the employer. That is what informing USCIS is about. In other words, the H1 petition is no longer valid. So, any other assumptions are wrong.

As far as the company being required to pay the person if they don't inform USCIS, that's a DOL rule. Some companies who didn't inform USCIS had to pay 3 years of salary to the beneficiary of the H1.

https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation."

 

I apologize for the delayed response. Kindly let me clarify and ask a question please. First, Company A is holding my H1B since last 10 years and they are still holding my H1B that is valid up to 2020. It's a week now that I am without job and I am still searching for a new job.

My question in all the above stated scenario is that my employer asked me that I should search a job within 60 days as otherwise go back to India. What's your opinion and guidance on this decision...what are my possible options. Kindly guide.

[JoeF]

The company, upon laying you off, has to inform USCIS that you no longer work there. That's a given.

You have a 60 day grace period from the day of layoff during which you are considered in status. If you find a new job during that time, the new employer can just file a new H1 and everything is fine.

If you are past the 60 day grace period, you are out of status, and a new H1 would only be approved with consular notification. If your I-94 is still valid you won't accumulate time towards a ban, but still, being out of status means you could get deported as per the recent USCIS memo. So you probably want to avoid that. If you are married and your spouse is on H1 then you could change to H4. Changing to another status like F1 or B2 isn't possible because these don't allow immigration intent, which the I-140 shows you have.

[joe30]

2 hours ago, RajaReddy said:

I apologize for the delayed response. Kindly let me clarify and ask a question please. First, Company A is holding my H1B since last 10 years and they are still holding my H1B that is valid up to 2020. It's a week now that I am without job and I am still searching for a new job.

My question in all the above stated scenario is that my employer asked me that I should search a job within 60 days as otherwise go back to India. What's your opinion and guidance on this decision...what are my possible options. Kindly guide.

You can find a job with a different employer and apply H1B transfer as a back up to be in USA with valid immigration status.

You should continue your quest for a client project meanwhile.

You can apply for a student visa and some universities give you OPT in the first semester. So, you can study and work simultaneously. 

In case you must go back to india, apply a new i-140 with consular processing, so that you can continue your green card from India, incase the PD becomes current, you can apply for GC from US consulate in India.

[JoeF]

3 hours ago, joe30 said:

You can find a job with a different employer and apply H1B transfer as a back up to be in USA with valid immigration status.

You should continue your quest for a client project meanwhile.

You can apply for a student visa and some universities give you OPT in the first semester. So, you can study and work simultaneously. 

In case you must go back to india, apply a new i-140 with consular processing, so that you can continue your green card from India, incase the PD becomes current, you can apply for GC from US consulate in India.

Getting admission to a university takes several months. OPT in the first semester is not possible. You may be thinking of CPT. No real university gives out CPT from day one. Signing up with a fraud institution would result in lots more problems. Further, the OP has an approved I-140 which makes it impossible to get an F1, since the F1 doesn't allow immigration intent.

For GC consular processing, there has to be a job offer from the original employer when the PD becomes current. To use CP for the current GC process, form I-824 can be filed.