Complicated H1B transfer (less time left) - PLEASE HELP!

[NJ87]

Hi All,

I am hoping that someone can help me with my situation here.

Situation:

I am working at a very large software company (as a vendor) on H1B since March 2011 through a reputable Indian-US company (Company 1) and got my last paycheck on 6/1/2012 and have been on bench (unpaid) since.

I have good relations with my employer (Company 1) and they will not pull the plug on my H1B visa (for a few weeks) although they have told me they don’t have any projects for me and that I should start looking out for other jobs. I started applying to other companies/consultants a few weeks back and have a job offer from a big co. through a small desi staffing company (Company 2). Consequently, if I take this offer, I will be on Company 2’s payrolls.

I have valid B1/B2 and Canadian visas as well.

Questions (under the assumption that my current employer doesn’t pull the plug on my H1B visa):

1. I am interviewing with other companies and know that I will convert a good full time job at a reputable company within 6-8 weeks from now.

Is it a bad idea to be unpaid while on H1B for up to 6-8 weeks?

2. After Company 2 starts my visa process, how soon can I join them?

I have read on the internet that I can join them upon the receipt of H1B transfer case from the USCIS. Is that true? If yes, how long does this usually take for normal and premium processing after an application has been filed?

3. If I get an offer from Company 3 after my H1B transfer process to Company 2 has started, can I start my H1B transfer process with Company 3 in parallel?

4. If yes to Point 3, is it a bad idea to do that? Or do the US immigration authorities see it as an issue/red flag where an individual is having multiple H1B transfer petitions at the same time?

5. If yes to Point 3, is the process for H1B transfer to Company 3 different with respect to what stage the H1B transfer process to Company 2 is at?

6. If I am moving to Company 2 with a good chance of changing employers again within 8 weeks from now, does it matter whether I go for Normal or Premium H1B processing with respect to H1B transfer to Company 2?

Company 2 is asking me to pay for 50% of H1B transfer fees, so I would like to avoid paying extra money, unless required for my scenario. If required, I can pay the money, no issues with that.

7. If I am moving to Company 2 with a good chance to change employers within 8 weeks, is it a bad idea to join a small co. (Company 2) with respect to my future prospects of changing employers in the US?

From my end, I have all paperwork in perfect order till date (with respect to tax/all paystubs/offer letter etc.)

8. If my H1B transfer petition to Company 2 gets approved and Company 1 finds a project for me, do I necessarily have to join Company 2 as my H1B visa has been transferred?

I have read that I don’t have to. Why is that?

9. Can it happen that my H1B transfer to Company 2 gets denied for any reason? If yes, in what scenarios? From my end, I have all paperwork in perfect order till date (with respect to tax/all paystubs/ offer letter etc.)

10. Any other potential issues to consider in this case?

Thanks you so much for all the help! I am very anxious and need immediate help on this!

Thanks,

NJ

[wiweq]

"Is it a bad idea to be unpaid while on H1B for up to 6-8 weeks?"

=> It's not an idea, it's an illegal activity. Staying even one day unpaid on H1b is illegal.

There is nothing called bench. You should be getting paid in every pay-cycle as per mentioned in LCA. It’s law.

If you maintain H1b status, you can transfer it whenever to any company. Yes, you can start working with receipt.

[NJ87]

"Is it a bad idea to be unpaid while on H1B for up to 6-8 weeks?"

=> It's not an idea, it's an illegal activity. Staying even one day unpaid on H1b is illegal.

There is nothing called bench. You should be getting paid in every pay-cycle as per mentioned in LCA. It’s law.

If you maintain H1b status, you can transfer it whenever to any company. Yes, you can start working with receipt.

Thanks for the info., wiweg. Appreciate it. I will start my transfer to Company 2 right away.

Let me know if anyone else has answers to my other queries.

Thanks,

NJ

[NJ87]

Hi All,

I am in desperate need of some more advice from the fellow members here:

Situation:

Company A could not find a project for me so instead of being unpaid for long, I started looking out and got offers from Company B (as vendor, more money) and C (as FTE, lesser money). After evaluation, I chose Company C for stability and they filed my LCA last week and if that is approved, they will file my H1B petition in the coming week. Also, I explained my complicated situation in detail to Company C's attorneys (my last paystub is from 5/30 and I have been unpaid since then). They advised me to get a letter (for my H1B petition) from Company A stating that I have been in employment with them but on unpaid leave since 5/30 due to personal reasons. I have requested Company A for that and hope for the best (fingers crossed).

Depending on answers to the following questions, I have to discuss and request to Company C's attorneys on Monday (7/9) to file for regular or premium processing (Company C is willing to spend extra on my premium processing).

Questions:

1. Is it better to go for regular or premium H1B processing (in terms of getting an RFE for my H1B petition and consequently my chances of approval)?

I have heard (and it sounds logical to me) that there is higher probability of a RFE in premium than regular processing. Because, in premium processing, USCIS has to respond (with a RFE/approval/denial) within 15 days of receipt and would raise a RFE at the slightest pretext. Whereas, in regular processing, I would have already started working with Company C after receiving the USCIS receipt and even if a RFE is issued asking for latest pay-stubs after, say, 2 months, I would have worked at Company C for 2 months and have at least 3-4 biweekly pay-stubs from them.

This question is interlinked to my next question.

2. If I go for regular processing, can the USCIS issue an RFE asking for pay-stubs from 5/31-7/15 (even if I get the aforementioned letter from Company A that says I have been employed but on unpaid leave due to personal reasons) (considering my last pay-stub from Company A was on 5/30 and I joined Company C on 7/16) after, say, 2 months? Or would they only ask for the latest pay-stubs (I should have 3-4 biweekly pay-stubs from Company C after 2 months).

I understand that it is difficult to answer my questions definitively as every case is different but I am looking for some reasonable pointers to help me decide, even though they might not be the solution for each and every situation.

Any help or pointers are really really appreciated! Thanks in advance!

Regards,

NJ

[NJ87]

For some more background about me, I believe that I can receive an RFE only for missing pay-stubs from 6/2 till I join my new employer (duration of ~6 weeks), which is a big thing in itself. I just wanted to highlight that my other things are in order like older pay-stubs, new company/work is genuine, I have all degree certificates, have already traveled on B2 visa prior to coming here on H1B visa etc.

Any help is greatly appreciated!

Cheers,

NJ

[NJ87]

After some more research on the internet, I found that missing pay-stubs will be an issue for me irrespective of whether I file for premium or not.

Consequently, I have thought of doing the following:

a. Go for regular H1B processing as that will potentially give me more time to stay in US (considering the worst case scenario - i.e. my H1B petition gets denied) and hunt for jobs in India.

b. Push Company A to get documentation that I was in employment but on unpaid leave (for ~6 weeks) for personal reasons.

Questions:

3. Do the above points (a. & b.) make sense?

Any thoughts/comments/ideas/brainstorming pointers would help!

4. If I get documentation from Company A stating that I was in employment with them but on unpaid leave (for ~6 weeks) due to personal reasons, does that benefit chances of my H1B petition with Company C a lot?

There is not much I can do about this situation except for getting the letter and obviously getting the letter doesn't harm, but more info. around the same will help in planning my immediate future and minimizing losses by being prepared for what may come my way. I don't want to buy a car/get a 1 year apartment lease if I know that my stay in this country beyond a few months (if my H1B petition is rejected, I will return to India promptly and not stay here against the law) might be doubtful (due to missing pay-stubs).

4. Any ideas if the Rule 245k can be applied to my scenario?

After some research on the internet, I found that up to 180 days (from my last entry into US) of out of status stay in the US can be overlooked? FYI, I have a Canadian Tourist Visa and the Canadian border is about ~4 hours away by car from me. I can easily make a quick trip to there next week. However, I am not sure if I understand this rule appropriately and if it is a good idea to do that while my H1B petition with Company C is going on and Company A will report my termination to USCIS late next week.

Any advice/comments/thoughts/brainstorming points are greatly appreciated!

Cheers,

NJ

[JoeF]

Hi All,

I am in desperate need of some more advice from the fellow members here:

Situation:

Company A could not find a project for me so instead of being unpaid for long, I started looking out and got offers from Company B (as vendor, more money) and C (as FTE, lesser money). After evaluation, I chose Company C for stability and they filed my LCA last week and if that is approved, they will file my H1B petition in the coming week. Also, I explained my complicated situation in detail to Company C's attorneys (my last paystub is from 5/30 and I have been unpaid since then). They advised me to get a letter (for my H1B petition) from Company A stating that I have been in employment with them but on unpaid leave since 5/30 due to personal reasons.

That won't work.

Such a fake letter would only make things worse. Company A could then blackmail you, for example.

Company A needs to pay you. Period.

If they don't want to pay you, file a complaint with DOL on form WH4. The DOL will make the company pay you.

That is the only way out of the situation.

[NJ87]

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That won't work.

Such a fake letter would only make things worse. Company A could then blackmail you, for example.

Company A needs to pay you. Period.

If they don't want to pay you, file a complaint with DOL on form WH4. The DOL will make the company pay you.

That is the only way out of the situation.

Thanks, JoeF. Your thoughts are appreciated.

I will consult with Company C's attorneys and proceed accordingly.

Cheers,

NJ

[wiweq]

"Company A could not find a project for me so instead of being unpaid for long, I started looking out and got offers from Company B (as vendor, more money) and C (as FTE, lesser money). After evaluation, I chose Company C for stability and they filed my LCA last week and if that is approved, they will file my H1B petition in the coming week. Also, I explained my complicated situation in detail to Company C's attorneys (my last paystub is from 5/30 and I have been unpaid since then). They advised me to get a letter (for my H1B petition) from Company A stating that I have been in employment with them but on unpaid leave since 5/30 due to personal reasons. I have requested Company A for that and hope for the best (fingers crossed). "

=> Your new attorney is also as crook or unaware of H1b laws as comp A. Back date letter for unpaid vacation is a fraud, and I wonder how an attorney doesn't know this fact. The only way is file WH4 on your state's DOL website.

"Is it better to go for regular or premium H1B processing (in terms of getting an RFE for my H1B petition and consequently my chances of approval)?"

=> RFE is independent of regular or pp.

"If I go for regular processing, can the USCIS issue an RFE asking for pay-stubs from 5/31-7/15 "

=> USCIS will ask anyways either its regular or PP. Provide them the WH4 acknowledgement letter. Though it won't make you in status but it will prove that you were aware of H1b regulations and taken appropriate timely action for this H1b violation.

[NJ87]

"Company A could not find a project for me so instead of being unpaid for long, I started looking out and got offers from Company B (as vendor, more money) and C (as FTE, lesser money). After evaluation, I chose Company C for stability and they filed my LCA last week and if that is approved, they will file my H1B petition in the coming week. Also, I explained my complicated situation in detail to Company C's attorneys (my last paystub is from 5/30 and I have been unpaid since then). They advised me to get a letter (for my H1B petition) from Company A stating that I have been in employment with them but on unpaid leave since 5/30 due to personal reasons. I have requested Company A for that and hope for the best (fingers crossed). "

=> Your new attorney is also as crook or unaware of H1b laws as comp A. Back date letter for unpaid vacation is a fraud, and I wonder how an attorney doesn't know this fact. The only way is file WH4 on your state's DOL website.

NJ: To wiweq: Company A will provide me a letter on the current date explaining that I was on unpaid leave for personal reasons. Would that be legitimate? I would also not want a back dated letter.

"Is it better to go for regular or premium H1B processing (in terms of getting an RFE for my H1B petition and consequently my chances of approval)?"

=> RFE is independent of regular or pp.

"If I go for regular processing, can the USCIS issue an RFE asking for pay-stubs from 5/31-7/15 "

=> USCIS will ask anyways either its regular or PP. Provide them the WH4 acknowledgement letter. Though it won't make you in status but it will prove that you were aware of H1b regulations and taken appropriate timely action for this H1b violation.

Thanks for your comments and thoughts, wiweq. They are much appreciated!

Cheers,

NJ

[venky123]

Dear nj 87.I am on the same boat like you.kindly call me so that we can discuss about our issue..seven three two nine eight six eight five four three.

[wiweq]

Company A will provide me a letter on the current date explaining that I was on unpaid leave for personal reasons. Would that be legitimate? I would also not want a back dated letter.

=> You have been on h1b specialty occupation visa, and should be adult enough to know that, for any vacation leave it should be approved by the employer dated prior to start the leave.

Your employer is doing the illegal activity and you are planning to assist them. You should be paid all though time on H1b status. It’s the law. Don't you like to get your earned money? It's your money and you should get it. Why are you getting afraid of filing WH4? There is no other way to fix this H1b violation. File WH4, get your missed payments, reinstate your status, and transfer your H1b peacefully. If you file WH4 today, you will get the receipts in two weeks. You fail to report this; you are partner in this illegal activity. In USA, max sentence for providing false information in immigration matters is imprisonment of 10 years. Choice is yours.

[giri26]

Company 2 is asking me to pay for 50% of H1B transfer fees, so I would like to avoid paying extra money, unless required for my scenario. If required, I can pay the money, no issues with that.

Also I think it is illegal to pay for H1B. Your company should bear all cost for H1B application.

[NJ87]

Dear nj 87.I am on the same boat like you.kindly call me so that we can discuss about our issue..seven three two nine eight six eight five four three.

We spoke about this. Hope all turned out well for you, Venky123.

[NJ87]

Any thoughts/comments to my questions, expected response, and my intended course of action would be really really appreciated.

Situation:

My current employer (Company C from the earlier thread below) filed my H1B visa application on 7/16/2012 in regular processing and I have been working there ever since.

In the last week of Nov. 2012, I found that I have to visit India around 1/20/2013 for my brother's wedding. I requested my current employer to apply for premium processing (PP) ASAP so that I may get a decision from USCIS soon and hopefully be able to travel out of USA in time. They applied for PP immediately on 12/4 and I received a RFE on 12/12 for the following reasons:

Company specific info.:

1. My employer changed locations within the same city between my applications for regular and premium processing, so USCIS requested for supporting info. for that.

My HR has prepared the latest official company documents (copy of the business lease/utility bills for the business premises/official quarterly tax returns/other official documents reflecting the new address/official address change notification to clients, etc.), so I believe that I should be good on that.

Employee (my) specific info.:

2. Copies of my payroll records with my previous employer (Company A) for 7/7 to 7/16 (9 days).

I resigned from my previous job on 7/6 and my H1B petition with my current employer was filed on 7/16. Consequently, I was out of status for 9 days (7/7 - 7/16). I do not have pay-stubs for this period or any explanation for USCIS for this gap.

3. A letter from my previous employer acknowledging the effective date I resigned from there.

I have got a letter from my previous employer stating the same (last date - 7/6/2012) and shared it with my current employer's attorneys handling my H1B petition.

4. Copies of my pay records with my current employer.

I have shared copies of my latest pay-stubs with my attorneys.

Questions:

The ultimate question that I am trying to get an answer to is around the timing to my RFE response submission, so that I can minimize risk to my India travel plans

(provided response to the Question #2 above is No).

All paperwork for my RFE is ready for submission to USCIS, but I am hoping that answers to the following smaller questions can help me make a decision:

1. Are 2nd RFEs common?

I don't foresee a reason for a 2nd RFE, but having said that, I would guess that that is difficult to predict..

The only thing that I remotely expect to get a RFE on - Why was I was out of status for 9 days (7/7 - 7/16)? But I guess that's not really a question that USCIS would ask. Either I have documents to prove that I was in status or I don't. I would assume it's black & white in that respect.

2. If I get a 2nd RFE, can I travel out of India and return to USA *safely* while my H1B petition is still in RFE status?

By *safely* I mean that there is no reason to believe that I will be stopped at the port of entry when returning to USA.

I have heard that that is not a good idea, but wanted to confirm and learn from someone else's experience here..?

3. If I get H1B approval pending stamping from out of the country, do I have to leave USA immediately?

I have heard that the answer is yes, but wanted to confirm that..

My personally 'expected' outcome after response to 1st RFE:

I get my visa approval but have to travel out of the country to get my stamping done again.

In light of the above expected response, my HR suggested that we reply to the RFE around 1/1/2013 so that by the time the expected outcome (see above) comes on ~1/15, I can travel to India around my desired dates of travel (~1/20) and get my stamping done in India as well.

However, after thinking about it a little more, (my intended course of action) I am thinking of requesting my attorneys to reply to my RFE immediately, which would give me the following advantage:

In case I get the 2nd RFE, replying early to the 1st RFE will afford me more time to reply to the 2nd RFE before my intended dates of travel.

Additionally, in case I get the expected response to my 1st RFE earlier than my planned dates of travel, I can travel out of the country and work remotely for a few weeks from India (I anticipate my boss to be good with that).

On paper, I have time till 3/6/2013 (March 6, 2013) to reply to my 1st RFE.

[wiweq]

If you leave USA in the middle of your H1b processing, your extension or change of status will be cancelled.

[NJ87]

This was resolved >2 years ago, but I figured that it's better to post a resolution to possibly help someone than post nothing at all. 

I have posted details here: 
http://www.**************.com/*******************

A big big round of thanks to everyone who helped! 
Hope this helps someone. Feel free to email with questions. 

Cheers, 
NJ

[NJ87]

The link seems to have disappeared, message me directly if you need any help.

 

Cheers,

NJ

[musree]

The link seems to have disappeared, message me directly if you need any help.

 

Cheers,

NJ

Hello nj87,

 

I'm in exaclty in your situation that you have faced back in 2012. can you send me ur details to ***************athotmail Please...Thank you!

[NJ87]

Hello nj87,

 

I'm in exaclty in your situation that you have faced back in 2012. can you send me ur details to ***************athotmail Please...Thank you!

Hi musree,

Your email ID was edited out (think private details are not allowed to be shared here, not sure). Can you private message me with your contact details?

[NJ87]

Hi musree,

Your email ID was edited out (think private details are not allowed to be shared here, not sure). Can you private message me with your contact details?

Hi musree,

I cant see the comment that you've posted on my profile.

I've updated my profile with my contact details. Please contact me there. I'm available through the day, so call me anytime.

Hope this helps.

Good luck.