H1B .. Laid off. H1B revoked..Options??

[suman84]

Hi Friends,

I was working for company X and they have laid off 1000+ employees all over US due to poor economic conditions in that particular industry. They asked me to leave on that very day which was November 13 without giving any prior notice. They offered me severance package and the last pay check was dated January 25. 2012. I spoke to two attorneys. First at murthy.com. She thought my H1B is already revoked (I found out today that my H1B is revoked today only and my ex employee took this long, 3 months to send a notice to USCIS) and I have just an option of H1B transfer with either extension of stay or consular processing. After her I spoke to another attorney called Kidambi and he was nice spoke about an hr and explained me clearly the options. He told me that there have been cases where the employee's H1B transfer petition has been accepted even after a gap of 4-5 months between the two jobs. He suggests me to find a job asap. I also asked him regarding F1 transfer and he says there shouldn't me any problem with that too. He thinks my case when genuinely presented to USCIS and my company laying off 1000+ people being in news there should be no issue in either of my visa transfer petition being accepted. So my questions.

1. How much time do I have now to transfer either to F1 or H1B since my H1B visa is revoked ?

2. My H1B is in a non IT background (mech. engg) and currently I am trying multiple options with IT being a strong one as there is not much scope in mechanical engineering with very few companies sponsoring? so would H1B transfer from a non IT to IT background would be an issue? my attorney thinks it has to be somehow related field but am still hopeful and considering IT strongly.

Please help.

[JoeF]

You can't get an H1 in IT. The H1 has to be in the field of your degree.

[catx]

"... leave on that very day which was November 13" indicates that this was your last day of employment, and thus the last day of your H-1B visa. Severance, date of your last paycheck, and when the H-1B was revoked by your employer does not mean your status was extended beyond your last day of employment. In other words you have been out of status (in the U.S. illegally and continuing to accrue out of status days) since your last day of actual employment (November 13). Respectfully, the second lawyer you consulted seems to be telling you things you want to hear.

You had no time to transfer your H-1B to another employer after November 13 as your visa ended with the end of your employment. You have no visa to transfer. As posted, for a H-1B visa your job has to be in your field of study (and not in any field). A F-1 student visa is for full-time studies. At this point the earliest you could get into an university program would be summer admission, but those are not very common. Further, fall 2013 admissions have closed or are quickly closing. That leaves the spring 2014 semester or for some schools fall 2014 semester.

[suman84]

so what are the chances of my COS petition getting approved? how much time do I have since my H1B is revoked now? Is H1B revoke happening 3 months after my last day at work of any benefit to me now or was it later had I already applied for COS back then? I understand that pay stubs are also an important part proving the legal status.

Seems attorneys at Murthy and elsewhere have succeeded in getting an extension of stay in similar cases and I hope for the same. They know how to fight it and win the case with ingenuity. They know the real stuff.

[suman84]

You can't get an H1 in IT. The H1 has to be in the field of your degree.

1. How much time do I have now to transfer either to F1 or H1B since my H1B visa is revoked ?

2. Is there any relationship between H1B revoke date and date of visa transfer from one employer to another or COS from H1B to F1 ? is the 3 month delay in revocation any benefit to me or was if I had done COS to F1 earlier? I understand the pay stubs playing an important role but does no revoke has any benefit?

[Attorney_25]

Late-filed transfer or change of status can be accepted in cases of lay-off. Stating that your H-1B visa was revoked is not correct usage of technical immigration terms, so I am not sure if you are talking about the letter being sent to USCIS by the employer 3 months after lay-off or the USCIS sending a revocation letter 3 months after lay-off. (Revocation of petition, not of visa.) In any case, 5 months is a bit long to be unemployed and you are taking a chance that the petition will be approved for consular instead of extension of stay. Obviously, if it's approved for consular only you will need to leave the US before re-entering to start work on the approval, and if you do not have a valid visa in your passport you will need to apply for one. Be sure that you have been advised on the impact of being out of status and also of being unlawfully present after I-94 expiration.

There are Mechanical Engineers working in IT. Normally they have some training in IT before starting work in the field.

[Attorney_23]

I spoke to another attorney called Kidambi and he was nice spoke about an hr and explained me clearly the options. He told me that there have been cases where the employee's H1B transfer petition has been accepted even after a gap of 4-5 months between the two jobs. He suggests me to find a job asap. I also asked him regarding F1 transfer and he says there shouldn't me any problem with that too. He thinks my case when genuinely presented to USCIS and my company laying off 1000+ people being in news there should be no issue in either of my visa transfer petition being accepted. So my questions.

This advice is completely irresponsible. As an attorney, I've certainly been able to help clients who have been out of status for 4 or 5 months (and even much longer.) However, I would never tell someone it 'should be no issue.' The legal standard for meeting the requirements of these types of filings is actually quite high; and these requests are entirely discretionary.

It does not matter whether a petition has been revoked or not as far as status goes -- an H1B worker falls out of status as soon as s/he is laid off.

[wiweq]

Late-filed transfer or change of status can be accepted in cases of lay-off.

=> This is not true. At the moment an employee loses his/ her job he/she is out of status. USCIS doesn’t care if the job loss was due to lay off or resignation.

It's 100% H1b employee's responsibility to file COS or leave the USA on the same/ next day of termination.

[Attorney_23]

=> This is not true. At the moment an employee loses his/ her job he/she is out of status. USCIS doesn’t care if the job loss was due to lay off or resignation.

It's 100% H1b employee's responsibility to file COS or leave the USA on the same/ next day of termination.

Yes, it is true. You are correct that an individual immediately falls out of status when laid off/terminated/etc. But, USCIS can accept these petitions nunc pro tunc. The issue is that USCIS has discretion to reject them. Typically, the more time that passes, the more challenging these cases can become.

[catx]

Attorney_23 thank you for providing an authoritative post confirming that "an individual [on a H-1B visa] immediately falls out of status when laid off / terminated" (November 13 in the case in question), and severance, date of last paycheck, post employer actions, etc. are not relevant. Further, remaining in the U.S is accruing out of status days, which is problematic.

More importantly, thank you for taking issue with Kidambi's 'legal advise'. It was overly optimistic at best (e.g. telling the person what they want to hear), and arguably more egregious. (I suspect if a petition nunc pro tunc is rejected, then the response would be 'oh well, there is always a risk of rejection'.) "Irresponsible" legal advice only exasperates the problem of misinformation about immigration laws, regulations, rules, and processes.

[suman84]

Late-filed transfer or change of status can be accepted in cases of lay-off. Stating that your H-1B visa was revoked is not correct usage of technical immigration terms, so I am not sure if you are talking about the letter being sent to USCIS by the employer 3 months after lay-off or the USCIS sending a revocation letter 3 months after lay-off. (Revocation of petition, not of visa.) In any case, 5 months is a bit long to be unemployed and you are taking a chance that the petition will be approved for consular instead of extension of stay. Obviously, if it's approved for consular only you will need to leave the US before re-entering to start work on the approval, and if you do not have a valid visa in your passport you will need to apply for one. Be sure that you have been advised on the impact of being out of status and also of being unlawfully present after I-94 expiration.

There are Mechanical Engineers working in IT. Normally they have some training in IT before starting work in the field.

Thanks for your valuable advice, much appreciated. I was talking about the letter being sent to USCIS by the employer 3 months after lay-off. I would like to use experts like those at murthy for my h1b transfer but my recruiter says they have their own attorney. Infact I would be paying the H1B transfer fees as well but don't know how to convince them if I can go through your firm.

[suman84]

This advice is completely irresponsible. As an attorney, I've certainly been able to help clients who have been out of status for 4 or 5 months (and even much longer.) However, I would never tell someone it 'should be no issue.' The legal standard for meeting the requirements of these types of filings is actually quite high; and these requests are entirely discretionary.

It does not matter whether a petition has been revoked or not as far as status goes -- an H1B worker falls out of status as soon as s/he is laid off.

Thanks for your valuable advice. I will be sending a COS petition to F1 next week to USCIS, so what chances do I stand for the acceptance? How can I take murthy firm's assistance in that as I already spoke once regarding my options? please help. :)

[catx]

... for my H1B transfer but my recruiter says they have their own attorney. In fact I would be paying the H1B transfer fees as well ...

I will be sending a COS petition to F1 next week to USCIS, so what chances do I stand for the acceptance?

Both these options seem highly suspect.

First, a recruiter is not an employer -- and requiring you to pay the H-1B transfer fees (and use their lawyer) should be seen as a big, red warning flag for questionable practices.

Second, how can you file for a change of status (CoS) petition for a F-1 student visa mid-semester. The earliest possible admission to a reputable, accredited school would be summer 2013. Much more likely at this point is admission for fall 2013, winter 2014, or even fall 2014 . Also, you cannot just go to a reputable, accredited school. There is a (often lengthy) admissions process including application, GRE, letters of reference, committee evaluation, etc.

You need to have a thorough discussion of your case with an immigration attorney (from Murthy) before proceeding with any options -- and be prepared to hear that your only option is to go back to your home country.

[JoeF]

Thanks for your valuable advice. I will be sending a COS petition to F1 next week to USCIS

You would have to get admission to a university first.

That alone takes several weeks to months (unless you sign up with a diploma mill, which of course would result in tons of other problems.)

You can't just send a COS to F1 out.

[suman84]

Both these options seem highly suspect.

First, a recruiter is not an employer -- and requiring you to pay the H-1B transfer fees (and use their lawyer) should be seen as a big, red warning flag for questionable practices.

Second, how can you file for a change of status (CoS) petition for a F-1 student visa mid-semester. The earliest possible admission to a reputable, accredited school would be summer 2013. Much more likely at this point is admission for fall 2013, winter 2014, or even fall 2014 . Also, you cannot just go to a reputable, accredited school. There is a (often lengthy) admissions process including application, GRE, letters of reference, committee evaluation, etc.

You need to have a thorough discussion of your case with an immigration attorney (from Murthy) before proceeding with any options -- and be prepared to hear that your only option is to go back to your home country.

Yes I already got an admit into a reputed university and applying for a COS next week. Also spoke to an attorney at murthy and ya good likelihood my petition is accepted without requiring me to travel out of US. And for H1B transfer its my recruiter cum employer. Thanks

[suman84]

You would have to get admission to a university first.

That alone takes several weeks to months (unless you sign up with a diploma mill, which of course would result in tons of other problems.)

You can't just send a COS to F1 out.

I am not that stupid to send a COS without an admit. Already got an admit into a reputed university and applying for a COS next week. Also spoke to an attorney at murthy and ya good likelihood my petition is accepted without requiring me to travel out of US. Thanks

[suman84]

=> This is not true. At the moment an employee loses his/ her job he/she is out of status. USCIS doesn’t care if the job loss was due to lay off or resignation.

It's 100% H1b employee's responsibility to file COS or leave the USA on the same/ next day of termination.

I think an attorney is more qualified than you to answer this. (assuming you ain't one) .

[JoeF]

Yes I already got an admit into a reputed university and applying for a COS next week. Also spoke to an attorney at murthy and ya good likelihood my petition is accepted without requiring me to travel out of US. And for H1B transfer its my recruiter cum employer. Thanks

Well, most people who do such a COS because of layoff do so with a diploma mill, because only diploma mills give out an I-20 within days (TVU infamously just took 5 days or so.)

Care to tell us which university you applied to, and how long it took?

[wiweq]

I think an attorney is more qualified than you to answer this. (assuming you ain't one) .

=> What documents would you send to prove that the job loss was due to "lay off"? The term "lay off" was mentioned on your termination letter? Please let me educate on this, how to show to the USCIS that the job loss was due to "lay off"!

[shp003]

I think an attorney is more qualified than you to answer this. (assuming you ain't one) .

Agree, I got laid off from one company on Dec 11th 2011 and I joined a new company on Jan 15th 2012. So I've transferred my H1B from A to B. But it takes time for company A to justify why they are laying me off etc and its a process. So they held my H1B till I got a new H1B and then sent out teh cancellation notice.

[rocky124]

@Suman84 : What is your status now? Are you going to school? is COS approved from H1 to F1?

as I am in exactly same situation as yours, so I wanted to make right move - please suggest.

I got laid off on April 19 2013 and my H1 got revoked on April 30 2013.

What are my chances of getting H1 approved if I apply for In House project as I am also from Mech and trying to move to IT.

which option is better ? COS or In House Project?

Also have one question : If I apply for COS and later if I got a job then can I apply for H1 transfer by with drawing the COS petition?

Murthy Forum members any input is much appreciated.

,

[rahul412]

I wanted to make right move - please suggest.

Right move, you are currently out of status. Any COS if approved, will be without I94. So you will be forced to cross the border.

[wiweq]

"Any COS if approved, will be without I94."

=> There is no COS approval without I94.

[dany_sat]

@Suman84 : What is your status now? Are you going to school? is COS approved from H1 to F1?

as I am in exactly same situation as yours, so I wanted to make right move - please suggest.

I got laid off on April 19 2013 and my H1 got revoked on April 30 2013.

What are my chances of getting H1 approved if I apply for In House project as I am also from Mech and trying to move to IT.

which option is better ? COS or In House Project?

Also have one question : If I apply for COS and later if I got a job then can I apply for H1 transfer by with drawing the COS petition?

Murthy Forum members any input is much appreciated.

,

what is your status on cos, did u leave the country ?

[dany_sat]

Yes I already got an admit into a reputed university and applying for a COS next week. Also spoke to an attorney at murthy and ya good likelihood my petition is accepted without requiring me to travel out of US. And for H1B transfer its my recruiter cum employer. Thanks

can you please give the school details , i am also in a similar position but different case