H1B transfer while current H1B being revoked

[vrimmi]

Hello all,

 

I feel I am in a terrible fix, need some help from all of you.

 

I had valid H1B and stamped visa from Employer XX valid until 30-Sep-2015. My employment was terminated on Jan-8th, I didnt file any change of status from H1 to any other non immigrant status. I am currently looking for other jobs but it looks like it might take some time. Meanwhile my ex-employer has initiated revoke process on my H1B petition on 30-Jan, so wanted to know what my current options are:

 

1. Does anyone know how many days/months USCIS takes to act on revocation notices? Have read in multiple forums that revocation notices are the last priority for USCIS and it takes 2-3 months to work on it? Is it true?

 

2. I am pretty sure I will find another job within next 3-4 weeks, if my H1 transfer petition is filed in premimum before USCIS gets my revoke petition, will it cause any problems?

 

3. I understand that I am currently OOS, so my understanding is even if my H1 transfer is approved, I will not get my I94 stub and will have to travel out of country and get stamping, Can someone clarify?

 

4. WHat would happen if USCIS gets my H1 transfer petition after my current petition is revoked? If revocation has no effect for me, can my transfer petition still get approved as H1 to H1 transfer or will it be counted a new H1 petiiton? in either ways, will it have a I94 stub since I am already OOS

 

5. Also if my transfer petition is recd by USCIS after my petition is revoked, will it be considered as a consular petition or change of status petition i.e will my new H1B be valid only from Oct 1 onwards?

 

My situation is driving me crazy, can someone pls clarify what my options are.

 

Thanks.

[jairichi]

Hello all,

 

I feel I am in a terrible fix, need some help from all of you.

 

I had valid H1B and stamped visa from Employer XX valid until 30-Sep-2015. My employment was terminated on Jan-8th, I didnt file any change of status from H1 to any other non immigrant status. I am currently looking for other jobs but it looks like it might take some time. Meanwhile my ex-employer has initiated revoke process on my H1B petition on 30-Jan, so wanted to know what my current options are:

 

1. Does anyone know how many days/months USCIS takes to act on revocation notices? Have read in multiple forums that revocation notices are the last priority for USCIS and it takes 2-3 months to work on it? Is it true?

 

2. I am pretty sure I will find another job within next 3-4 weeks, if my H1 transfer petition is filed in premimum before USCIS gets my revoke petition, will it cause any problems?

 

3. I understand that I am currently OOS, so my understanding is even if my H1 transfer is approved, I will not get my I94 stub and will have to travel out of country and get stamping, Can someone clarify?

 

4. WHat would happen if USCIS gets my H1 transfer petition after my current petition is revoked? If revocation has no effect for me, can my transfer petition still get approved as H1 to H1 transfer or will it be counted a new H1 petiiton? in either ways, will it have a I94 stub since I am already OOS

 

5. Also if my transfer petition is recd by USCIS after my petition is revoked, will it be considered as a consular petition or change of status petition i.e will my new H1B be valid only from Oct 1 onwards?

 

My situation is driving me crazy, can someone pls clarify what my options are.

 

Thanks.

1. Does not matter as you are out of status after the last day with employer.

2. Yes, if it is approved it would be approved as consular processing.

3. Yes.

4. It will be a cap exempt H1B petition and if approved it will be consular processing.

5. Consular processing and you just have to exit and enter with a valid H1B visa and new I797.

[pontevecchio]

For future reference research the H1 program thoroughly.

You are out of status now. It is extremely unlikely though not impossible for you to get your COS approved. Most likely the petition will be approved without the I94 meaning you would leave and return with the H1 visa on approval. Once cap counted you have a total of 6 years in H1 status available non cap ,spread out over years if appropriate.

[JoeF]

As I explained to you in another forum already, H1 revocation is completely irrelevant for you.

[aktar1976]

Hello,

I have same problem. My employer going to revoke my H1B on 22nd Feb 2014 and they told me i should leave USA before 28th Feb 2014. My H1B valid till 2016 and I have B1/B2 visa also and it valid till 2017.

I know it takes 3 to 4 weeks more to get another employer to transfer my H1B.

Can any one advise me what would be the best way to stay in US and find an employer to transfer my H1B. 

[jairichi]

Hello,

I have same problem. My employer going to revoke my H1B on 22nd Feb 2014 and they told me i should leave USA before 28th Feb 2014. My H1B valid till 2016 and I have B1/B2 visa also and it valid till 2017.

I know it takes 3 to 4 weeks more to get another employer to transfer my H1B.

Can any one advise me what would be the best way to stay in US and find an employer to transfer my H1B. 

If you would like to stay in US apply for a COS to B2 and ask new employer B to file your cap exempt H1B petition in PP. Once approved exit and enter US with a valid H1B visa and new employer's I797. In this way your COS to B2 gets abandoned. Alternatively, find an employer to file a cap exempt H1B petition as consular processing, make use of free ticket to your home country by your current employer and come back later when H1B petition with new employer is approved.

[aktar1976]

Thanks for prompt reply.

 

1) Another company try to get a new project for me. After getting project they will apply for transfer. As i have another 18 days, should i wait for new project or need to apply for COS immediately. And how long it takes to change my status after apply for COS.

 

2) After getting B2 status how long it takes if an employer want to transfer my H1B and from when i can start work.

[jairichi]

Thanks for prompt reply.

 

1) Another company try to get a new project for me. After getting project they will apply for transfer. As i have another 18 days, should i wait for new project or need to apply for COS immediately. And how long it takes to change my status after apply for COS.

 

2) After getting B2 status how long it takes if an employer want to transfer my H1B and from when i can start work.

1. If possible ask new employer to file for your H1B petition before your last working day with current employer. If not possible apply for a COS at least on the last day with current employer.

2. It takes 3 to 4 months to get H1B approval by regular processing and 15 days by premium processing. Only on approval you can start to work.

[JoeF]

Hello,

I have same problem. My employer going to revoke my H1B on 22nd Feb 2014 and they told me i should leave USA before 28th Feb 2014. My H1B valid till 2016 and I have B1/B2 visa also and it valid till 2017.

I know it takes 3 to 4 weeks more to get another employer to transfer my H1B.

Can any one advise me what would be the best way to stay in US and find an employer to transfer my H1B. 

You need to file a COS to some other status, e.g., B2.

And again, H1 revocation does NOT matter!

What matters is when you are laid off.

[Attorney_25]

In general in the case of lay-off USCIS can and usually will exercise their discretion to forgive time out of status after the lay-off, and approve the petition with extension of status, i.e with I-94. This depends on whether you (or rather, your new employer/petitioner) can show that your departure from your prior employer was not due to your own fault, and also to some degree how long it took you to find new employment. It is possible to get these "nunc pro tunc" petitions approved after several months of unemployment, but it is more difficult than if you have been unemployed for only a month or so.

 

As to item #6, you are under the common misperception that a petition approved as "consular" (i.e. without extension of stay/I-94) must be counted under the new H-1B quota. This is not true. If you were already counted, you do not need to be counted again. There is a recent article on this issue at www.Murthy.com (News).

 

A change of status to B-2 is often a good idea, but keep in mind if you then have an H-1B extension/change of employer approved BEFORE the B-2 is approved, you must urgently withdraw the B-2 application before it is approved, taking you out of your newly-extended H-1B status and into B-2 status, thus removing your work authorization until you can get another H-1B I-94. ("Last Action Rule.")

[aktar1976]

Thanks Jairichi and Joef.

 

1) How long i could stay with B2 after changing my status H1B to B2.

 

2) In the Form I-539, there have an option on Part1 Nonimmigrant status and expires date. My H1B valid till Sep 2016 but my I-94 valid till Nov 2015. So, My question, what is the date of Nonimmigrant expires in this case?  

 

3) What will be the better reason to apply H1B to B2 status on the form I-539.

 

4) My spouse currently in my native country with H4 visa. She never entered in USA. So if i change my status H1B to B2 then what will be my spouse status. If she want to enter in USA in the mean time what she needs to do.

[jairichi]

Thanks Jairichi and Joef.

 

1) How long i could stay with B2 after changing my status H1B to B2.

 

2) In the Form I-539, there have an option on Part1 Nonimmigrant status and expires date. My H1B valid till Sep 2016 but my I-94 valid till Nov 2015. So, My question, what is the date of Nonimmigrant expires in this case?  

 

3) What will be the better reason to apply H1B to B2 status on the form I-539.

 

4) My spouse currently in my native country with H4 visa. She never entered in USA. So if i change my status H1B to B2 then what will be my spouse status. If she want to enter in USA in the mean time what she needs to do.

1. Till a decision is made on your COS from H1B to B2 application.

2. It is your I94 status.

3. The true reason.

4. She is in your home country and as such has no status.She cannot enter on H4. She has to stay back in home country till you finalize something.