Covid-19 Layoff on h1b and transfer petition

[Ponath Kumar]

Hello -

I was laid off due to Covid-19 in March 2020 and then till date my employer put me on LOA (leave of absence) and running $0 paystub biweekly. Recently found a new job after 60 days of grace period and the new employer's immigration lawyer is providing below 2 options. So can you please recommend which would a better route?

1. We can file with the paystubs, but please realize the risk—if USCIS determines that you did not maintain status, then they would deny an extension of status request and your current H-1b visa stamp would be voided. That means that, even if the petition is approved, you would not be able to work until you travel out, get a new visa stamp, and re-enter the US. The earliest that would happen would be January 2021, due to the Trump H-1b ban.

 2. The next option is to request consular processing, instead of an extension of status, and avoid USCIS evaluating your paystubs and current status. In this scenario you would need to travel out and re-enter after the approval is received, but you would not need to wait until January since your current visa would remain valid.

My wife is also with me in US and on h4 visa, so due to the travel ban I am hesitant to take option # 2 and try to re-enter US. I have shared my $0 paystub and also the approved leave to my new employer's immigration attorney to better substantiate my case.

Thanks for any response in advance!

[User099]

Your employer is supposed to pay you full pay or let you go. There is no concept of $0 pay. You can try option 2, but USCIS will generally ask for paychecks to verify your legal status in both cases. 

Unless you have filed for a B2 before the 60 day grace period is over, you are overstaying your visa.

[Ponath Kumar]

Thanks for your response. My attorney is suggesting to file h1b with consular processing as I've a valid h1b visa & i94 valid till Nov 2021 so I can travel with the valid visa and re-enter US with the new approved i797 and h1b visa. Do you think traveling will be an issue due to the President's travel ban (L1,H1b,J1) ?

Edited July 15, 2020 by Ponath Kumar

[User099]

Ban will not effect you since you already have a valid visa on the day the EO went into effect. Just show the new I797 and old visa and you should be able to re-enter.