Employment gap question for GC

[bodideveloper]

Hi,

I transfered my H1 to new employer and almost 1 and 1/2 yrs completed with current employer. I never asked for GC but they said they will file GC next 2 monts in EB2. Now I got an offer from Big 5 consulting company with Manager title and this company will start GC process in Eb2 after 1 yr employment.

Now my question is - I was on bench for 1 and 1/2 month from first employer and I don't have exp letter but I have w-2 except for 1 and 1/2 month. Will this impact my GC process ?

I did research on forums and most of them say get an affidavit and get signatures from coleagues. But i don't know anyone from that company.

Any thoughts or experiences will be appreciated.

Thank you

[t75]

Whenever you are out of status it could adversely affect future immigration processing. You should have taken action at that time.

[visitor_ma]

Whenever you are out of status it could adversely affect future immigration processing. You should have taken action at that time.

My concern is same although GC will start for my husband n not me and my husband will sponsor GC for me.  I am not sure if my GC process or my husband's GC process will get in limbo due to me not working while on H1.

 

So when I got H1B I worked for couple of months initially. Actually my son was pre-mature although an year old by then, but he wasn't taking food at daycare so I decided to quit and for 10 months I didn't worked and I didn't get paid for those months as well.  Also my health wasn't that good, it was tough to manage both work and son both emotionally leaving him at daycare was not going easy for us.

 

And we were ignorant about the fact that this period of being on bench would/ could have adverse affects on our GC application. And I just submitted an application to my employer stating that not keeping well and will continue once well. I did not mention anything about leaving my son, him not being able to cope at daycare and no documents were there for me to give him as it's just I know that he is not doing good at daycare, so I have to stay back home.  Had I known that being on bench have adverse impact I would have applied for COS to H4, but we didnt do that as we both didn't know that time about strict US immigration laws. 

 

So basically having said that, I am wondering if employer for my spouse will file GC will it go through smoothly. If yes, what will happen for my GC.  Please note after 10 months when I started working, I was never on bench again till I left US.

 

Please advise me on this. 

[jairichi]

My concern is same although GC will start for my husband n not me and my husband will sponsor GC for me.  I am not sure if my GC process or my husband's GC process will get in limbo due to me not working while on H1.

 

So when I got H1B I worked for couple of months initially. Actually my son was pre-mature although an year old by then, but he wasn't taking food at daycare so I decided to quit and for 10 months I didn't worked and I didn't get paid for those months as well.  Also my health wasn't that good, it was tough to manage both work and son both emotionally leaving him at daycare was not going easy for us.

 

And we were ignorant about the fact that this period of being on bench would/ could have adverse affects on our GC application. And I just submitted an application to my employer stating that not keeping well and will continue once well. I did not mention anything about leaving my son, him not being able to cope at daycare and no documents were there for me to give him as it's just I know that he is not doing good at daycare, so I have to stay back home.  Had I known that being on bench have adverse impact I would have applied for COS to H4, but we didnt do that as we both didn't know that time about strict US immigration laws. 

 

So basically having said that, I am wondering if employer for my spouse will file GC will it go through smoothly. If yes, what will happen for my GC.  Please note after 10 months when I started working, I was never on bench again till I left US.

 

Please advise me on this. 

I believe you would have to forget about your GC. Ignorance of law is not an excuse for breaking law. Your husband should be fine. Wait for other members to give their opinion.

[visitor_ma]

I believe you would have to forget about your GC. Ignorance of law is not an excuse for breaking law. Your husband should be fine. Wait for other members to give their opinion.

Ok, I won't lie, now that scare the hell out of me. So what status I will be living with my family? Or does that mean after his GC is done, I will never be able to stay with family as there is no H4 for spouse of GC holder or citizens.  Please advise.  What issue the employer will face nothing??? He is still running his business.

[visitor_ma]

Or I will have to keep applying H1B, keep working for 6 years then go back to home country and reapply for H1B and come back again after 2 years to US.

 

My son is a US citizen so once he turns 21, can't he file GC for me? I m ok living on H1B till he turns 21 and my husband in GC status (GC through employment if that get started for him and he gets it).

 

Also does that mean that I will never get EAD, once my husband's GC gets started and reaches that stage? God I m so in deep trouble I think.

[rahul412]

Please advise me on this. 

Better to contact attorney ASAP. Though you were on bench, BY LAW your employer has to pay you every month if you are on H1. Obviously,COS will be a problem since you doesn't have pay-stubs.

[jairichi]

Or I will have to keep applying H1B, keep working for 6 years then go back to home country and reapply for H1B and come back again after 2 years to US.

 

My son is a US citizen so once he turns 21, can't he file GC for me? I m ok living on H1B till he turns 21 and my husband in GC status (GC through employment if that get started for him and he gets it).

 

Also does that mean that I will never get EAD, once my husband's GC gets started and reaches that stage? God I m so in deep trouble I think.

Hey, I am not here to scare you. Based on what you had mentioned in your post I am giving you a honest reply. Go through the following post.

 

http://www.murthy.com/2012/03/30/murthy-success-story-h-4-nunc-pro-tunc-reinstatement/

http://forum.murthy.com/index.php?/topic/61983-h4-rfe-overstayed-in-usa-for-more-than-180-days/?hl=nunc#entry236386

 

It might be helpful and probably your situation might be somewhat similar. 

 

As rahul412 suggested better contact an immigration attorney asap. Like the way he said you need to be paid by employer even if you were on bench on H1B. There is a possibility that you could file a complaint with DOL against your employer and get your record rectified.

[jairichi]

My concern is same although GC will start for my husband n not me and my husband will sponsor GC for me.  I am not sure if my GC process or my husband's GC process will get in limbo due to me not working while on H1.

 

So when I got H1B I worked for couple of months initially. Actually my son was pre-mature although an year old by then, but he wasn't taking food at daycare so I decided to quit and for 10 months I didn't worked and I didn't get paid for those months as well.  Also my health wasn't that good, it was tough to manage both work and son both emotionally leaving him at daycare was not going easy for us.

 

And we were ignorant about the fact that this period of being on bench would/ could have adverse affects on our GC application. And I just submitted an application to my employer stating that not keeping well and will continue once well. I did not mention anything about leaving my son, him not being able to cope at daycare and no documents were there for me to give him as it's just I know that he is not doing good at daycare, so I have to stay back home.  Had I known that being on bench have adverse impact I would have applied for COS to H4, but we didnt do that as we both didn't know that time about strict US immigration laws. 

 

So basically having said that, I am wondering if employer for my spouse will file GC will it go through smoothly. If yes, what will happen for my GC.  Please note after 10 months when I started working, I was never on bench again till I left US.

 

Please advise me on this. 

Also, clarify me one thing. Did you quit your job (resignation letter submitted & accepted) or your employer agreed to keep you on bench with out pay? There is a huge difference between these two. If you had quit then you can not complain to DOL but if you were kept on bench by employer and not paid you could complain and get your record straight. Give the office of Murthy a call immediately.

[rahul412]

Or I will have to keep applying H1B, keep working for 6 years then go back to home country and reapply for H1B and come back again after 2 years to US.

 

My son is a US citizen so once he turns 21, can't he file GC for me? I m ok living on H1B till he turns 21 and my husband in GC status (GC through employment if that get started for him and he gets it).

 

Also does that mean that I will never get EAD, once my husband's GC gets started and reaches that stage? God I m so in deep trouble I think.

ohh, don't think too much. Contact some attorney, you will be good.

[visitor_ma]

Hey, I am not here to scare you. Based on what you had mentioned in your post I am giving you a honest reply. Go through the following post.

 

http://www.murthy.com/2012/03/30/murthy-success-story-h-4-nunc-pro-tunc-reinstatement/

http://forum.murthy.com/index.php?/topic/61983-h4-rfe-overstayed-in-usa-for-more-than-180-days/?hl=nunc#entry236386

 

It might be helpful and probably your situation might be somewhat similar. 

 

As rahul412 suggested better contact an immigration attorney asap. Like the way he said you need to be paid by employer even if you were on bench on H1B. There is a possibility that you could file a complaint with DOL against your employer and get your record rectified.

Thank you all for your comforting comments, although it seems I m in garve situation, which I never realised before. Only when we thought of GC process n all, I started exploring in the forums I started getting all these info.

 

I didnt worked at intial 10 months after approval, after that I worked continously, I even travelled out of country and got H1B stamped with only 3 months paystubs (but VO didn't asked for it, although I had it with me to show) prior to those 3 months, I was not working.

 

Then I worked for 2.5 yrs FT, I changed to consulting company and worked for I guess 4.5 months for a client. My employer got RFE on my case, I dont know the reason they didn't shared it with me but by that time I had to come back to India so I resigned and my employer withdrew my case. Actually after telling them that I might need to resign I came to know that for my case they got RFE.

 

I asked them about RFE reason they just didnt shared with me, anyways I couldnt do anything but since now I was returning back to India, I didnt do anything. Later on USCIS site when I checked my EAC status, it shows withdraw the case.

 

So my point is that why I got H1B stamped at first place when I went out of country, because right before those 3 months I was not working.  and now it's been 6 years out of which my 2 yrs are only left on that H1B but I was out of country during that time.

 

May be if I get to know the RFE reason then I will have better insight on what went wrong during transfer was it just checking the credibility of consulting company or client letter or my previous on bench time. But since my Employer didnt even entertained my phone calls would "just say we dont have time for those who are not working with us anymore" what I could expect from them, I think he got angry that I worked only for 4.5 months and I m leaving so hi 4500 USD H1 transfer fees gone down the drain as he could not make money through me.

 

Now how could I find the info on my RFE, is there any way, please advise.

[visitor_ma]

Thank you all for your comforting comments, although it seems I m in garve situation, which I never realised before. Only when we thought of GC process n all, I started exploring in the forums I started getting all these info.

 

I didnt worked at intial 10 months after approval, after that I worked continously, I even travelled out of country and got H1B stamped with only 3 months paystubs (but VO didn't asked for it, although I had it with me to show) prior to those 3 months, I was not working.

 

Then I worked for 2.5 yrs FT, I changed to consulting company and worked for I guess 4.5 months for a client. My employer got RFE on my case, I dont know the reason they didn't shared it with me but by that time I had to come back to India so I resigned and my employer withdrew my case. Actually after telling them that I might need to resign I came to know that for my case they got RFE.

 

I asked them about RFE reason they just didnt shared with me, anyways I couldnt do anything but since now I was returning back to India, I didnt do anything. Later on USCIS site when I checked my EAC status, it shows withdraw the case.

 

So my point is that why I got H1B stamped at first place when I went out of country, because right before those 3 months I was not working.  and now it's been 6 years out of which my 2 yrs are only left on that H1B but I was out of country during that time.

 

May be if I get to know the RFE reason then I will have better insight on what went wrong during transfer was it just checking the credibility of consulting company or client letter or my previous on bench time. But since my Employer didnt even entertained my phone calls would "just say we dont have time for those who are not working with us anymore" what I could expect from them, I think he got angry that I worked only for 4.5 months and I m leaving so hi 4500 USD H1 transfer fees gone down the drain as he could not make money through me.

 

Now how could I find the info on my RFE, is there any way, please advise.

I have one more important question if any one can provide any answers it will be great.

 

I got H1B in 2008 I from Oct 2008 till Feb 2009 I didn't worked so it is less than 180 days.

Mar 2009 -Apr 2009 I worked but with kid and traveling involved I decided to quit, as my kid was not able to cope up at daycare environment.

May 2009-Sep2009 I didn't worked. During this time I used to take my son to day care and I used to go to daycare 4 times in a day to check on him, to feed him so that he dont starve till evening. Once he got adjusted slightly, I started working from Oct 2009

 

So in total I didnt worked 10 months but it was not continous 10 months. So if I m considered OOS then I was OOS for less than 180 days in both cases. In that case if I stay out of US for 3 years will it help me.  Will I be able to get H1B and GC if I try after 3 years.

 

Actually I m out of US already for 2 years now and if I don't go back US now and instead go back after 1 year then will it help me? Please please advise me on this.

 

I really didnt know that being on H1b and not working could have this permanent damage, I did asked my employer and he mentioned to put sick leave, he never told that I could have problem in future. I m so worried about this I hope any one can tell me about my above question, also I will take attorney's advice on this but meanwhile if someone can respond, I will truly appreciate it. Thanks so much for reading my lengthy post.

[jairichi]

I have one more important question if any one can provide any answers it will be great.

 

I got H1B in 2008 I from Oct 2008 till Feb 2009 I didn't worked so it is less than 180 days.

Mar 2009 -Apr 2009 I worked but with kid and traveling involved I decided to quit, as my kid was not able to cope up at daycare environment.

May 2009-Sep2009 I didn't worked. During this time I used to take my son to day care and I used to go to daycare 4 times in a day to check on him, to feed him so that he dont starve till evening. Once he got adjusted slightly, I started working from Oct 2009

 

So in total I didnt worked 10 months but it was not continous 10 months. So if I m considered OOS then I was OOS for less than 180 days in both cases. In that case if I stay out of US for 3 years will it help me.  Will I be able to get H1B and GC if I try after 3 years.

 

Actually I m out of US already for 2 years now and if I don't go back US now and instead go back after 1 year then will it help me? Please please advise me on this.

 

I really didnt know that being on H1b and not working could have this permanent damage, I did asked my employer and he mentioned to put sick leave, he never told that I could have problem in future. I m so worried about this I hope any one can tell me about my above question, also I will take attorney's advice on this but meanwhile if someone can respond, I will truly appreciate it. Thanks so much for reading my lengthy post.

Visitor_ma, you have to understand one thing. This is a forum to give you an idea or direction based on situations or scenarios. For you I would strongly suggest that you sit with an immigration attorney to discuss everything about your case. Contact an immigration attorney at Murthy's at your city and have your discussion asap.

[pontevecchio]

Since you left and came back legally after the break in H1 status you are fine. As they say a little knowledge is dangerous. Based on your facts you should have no problem being a derivative for the GC. If you have specific queries your spouses company Law firm who will file will be able to help. You are not in any trouble. Where is your spouse based at the moment?

[jairichi]

Since you left and came back legally after the break in H1 status you are fine. As they say a little knowledge is dangerous. Based on your facts you should have no problem being a derivative for the GC. If you have specific queries your spouses company Law firm who will file will be able to help. You are not in any trouble. Where is your spouse based at the moment?

Now Pontevecchio has a different opinion about your status from mine. Nothing is black and white here. Consult an immigration attorney to get a definitive answer or solution.

[jairichi]

Since you left and came back legally after the break in H1 status you are fine. As they say a little knowledge is dangerous. Based on your facts you should have no problem being a derivative for the GC. If you have specific queries your spouses company Law firm who will file will be able to help. You are not in any trouble. Where is your spouse based at the moment?

@ Pontevecchio, I am not here to discourage OP, but is there a possibility that the VO at the time of H1B stamping would have overlooked her status issue in US?

[pontevecchio]

The status issue has gone away since she returned in H1 status and has since never been out of status after that. There is no problem of any kind.

[visitor_ma]

@ Pontevecchio, I am not here to discourage OP, but is there a possibility that the VO at the time of H1B stamping would have overlooked her status issue in US?

Thank you all s much for reading my lengthy posts, and responding to those. I will surely sit with an immigration lawyer before entering US as I m already out of US for 2 years now and if I stay one more year out I will complete 3 years just in case I m considered OOS which was less than 180 days.

 

Reason I am asking here my question is that I have been going through these forums as I m not working these days and more I read, I get worried so its just I m anxious to know what will happen with me.

 

Also about stamping thing I dont think VO would have overlooked it, because during this time H1 stamping we noticed how VO looked at evry detail and I don't think they miss any detail. Our all details reach to them when we fil DS160 form.

 

And also after stamping I applied for H1 transfer I was working as consultant at client site and further with same client H1 was transfered. For first  H1 transfer everything went smoothly no RFE nothing, it could be because it was a company with only me as  H1 candidate, they are not consulting company. So best thing was for those 10 months we did not get RFE.

 

However when I resigned as FT employee and joined another consulting company, where I had to work for client, we got RFE, but in this case since I moved back to India, sponsorer wihdrew my case.

 

Thanks so much again for your suggestions and answers to my questions, once I have discussion with attorney I will update my outcome here.

[visitor_ma]

@ Pontevecchio, I am not here to discourage OP, but is there a possibility that the VO at the time of H1B stamping would have overlooked her status issue in US?

@Pontevecchio, We are in HK these days, and got H1 and H4 visa stamped without any issue. And VO was asking every minute details this time.

[pontevecchio]

You are confusing  OUT OF STATUS with UNLAWFUL status. OOS issues go away at the next legal entry on a H1 visa and the clock starts again which in your case is zero as of now. UNLAWFUL status implies overstaying the I94 and if you overstay the validity of the I94 you start accumulating bans based on how long. If the I94 was valid even though you were out of status in H1, you are not subject to any bans.

[jairichi]

@Pontevecchio, We are in HK these days, and got H1 and H4 visa stamped without any issue. And VO was asking every minute details this time.

I believe everything gets sorted out for you in a positive way.

 

You are confusing  OUT OF STATUS with UNLAWFUL status. OOS issues go away at the next legal entry on a H1 visa and the clock starts again which in your case is zero as of now. UNLAWFUL status implies overstaying the I94 and if you overstay the validity of the I94 you start accumulating bans based on how long. If the I94 was valid even though you were out of status in H1, you are not subject to any bans.

You have a good point here. Thanks

[visitor_ma]

You are confusing  OUT OF STATUS with UNLAWFUL status. OOS issues go away at the next legal entry on a H1 visa and the clock starts again which in your case is zero as of now. UNLAWFUL status implies overstaying the I94 and if you overstay the validity of the I94 you start accumulating bans based on how long. If the I94 was valid even though you were out of status in H1, you are not subject to any bans.

@pontevecchio, thanks so much for educating me. I m so relieved now.

I cannot thank you enough for clarifying my doubts, thought of being OOS and not being able to work ever again or attain GC was killing me.

Thanks again to this forum and contributors offering to help us.

[jairichi]

@pontevecchio, thanks so much for educating me. I m so relieved now.

I cannot thank you enough for clarifying my doubts, thought of being OOS and not being able to work ever again or attain GC was killing me.

Thanks again to this forum and contributors offering to help us.

I am extremely sorry about this confusion. I am educated by Pontevecchio's point.

[visitor_ma]

I am extremely sorry about this confusion. I am educated by Pontevecchio's point.

So I guess I dont need to consult any attorney now :) ?

When GC will start for my spouse will check with company's paralegal  then.