When I have an unexpired h1 stamping in my passport,do i have to visit India for stamping again if I file H1B transfer via Consular Process in US?

Mr.Rao

By Mr.Rao,
in H1B : General

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Mr.Rao Advanced Member

Mr.Rao

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I have company A’s H1B visa stamped on my passport with validation till September  31st 2015. And my current H1B visa is with company B where i was laid of on March 5th 2014 and got a mail from USCIS that my visa with company B was revoked on March 27th 2014. Now I have an offer letter from company C and they are willing to do my H1 visa. I want to know in this case whether I have to request company C to do H1 transfer with Consular processing premium or regular H1 transfer in premium processing. If I get approval without I-94 attached, do i have to go to visa consulate office in my home country to get it stamped or will it be sufficient to travel with old visa stamping that is valid till Sep 2015 and new I797 approval ?


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jairichi Advanced Member

jairichi

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I have company A’s H1B visa stamped on my passport with validation till September  31st 2015. And my current H1B visa is with company B where i was laid of on March 5th 2014 and got a mail from USCIS that my visa with company B was revoked on March 27th 2014. Now I have an offer letter from company C and they are willing to do my H1 visa. I want to know in this case whether I have to request company C to do H1 transfer with Consular processing premium or regular H1 transfer in premium processing. If I get approval without I-94 attached, do i have to go to visa consulate office in my home country to get it stamped or will it be sufficient to travel with old visa stamping that is valid till Sep 2015 and new I797 approval ?

 

You are out of status from March 5th 2014. Your cap exempt H1B petition with company C can be applied only as consular processing. On approval you need to exit and enter US with a valid H1B visa and new I797.

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Mr.Rao Advanced Member

Mr.Rao

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Thank you jairichi and t75.

 

a. Just out of curiosity, what worse can happen if they file normal h1 transfer instead of consular? i am guessing either way they will send the i797 without i94 which mean I have to travel out of country and enter again.

 

b. So, you both are concurring that since I have a valid H1 stamping in passport that is unexpired, I need not go for stamping again. I should be good to travel with the latest i797 approval and already existing stamping?

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jairichi Advanced Member

jairichi

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Thank you jairichi and t75.

 

a. Just out of curiosity, what worse can happen if they file normal h1 transfer instead of consular? i am guessing either way they will send the i797 without i94 which mean I have to travel out of country and enter again.

 

b. So, you both are concurring that since I have a valid H1 stamping in passport that is unexpired, I need not go for stamping again. I should be good to travel with the latest i797 approval and already existing stamping?

a. Yes, it will be approved as consular processing.

b. Yes.

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Mr.Rao Advanced Member

Mr.Rao

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Thank you Jairichi.

 

My attorney said he will process my h1 transfer in a normal premium processing(not consular) and if by chance they approve with i94 I will start working right then. If there is no i94 all I can do is fly out of the country and enter with the existing H1 stamping and new i797(which is approved without i94).

 

Is the plan correct?

 

 

Thank you in advance.

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jairichi Advanced Member

jairichi

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Thank you Jairichi.

 

My attorney said he will process my h1 transfer in a normal premium processing(not consular) and if by chance they approve with i94 I will start working right then. If there is no i94 all I can do is fly out of the country and enter with the existing H1 stamping and new i797(which is approved without i94).

 

Is the plan correct?

 

 

Thank you in advance.

Yes, that is correct.

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Mr.Rao Advanced Member

Mr.Rao

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Update on my status:

Company C had a H1B Premium Processing Transfer Petition(NOT consular) filed on behalf of me on 04/09/2014. Received the petition number on 04/12/2014. I am awaiting the approval from USCIS to check whether I get an i-94 with the approval or not.

 

fingers crossed x !

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Mr.Rao Advanced Member

Mr.Rao

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A RFE is issued for my H1 petition asking for my employer C to submit few documents and the beneficiary(me) to submit latest pay stubs which I do not have for past one month. My attorney is suggesting to change it to consular petition now. 

 

a) Cannot we notify USCIS stating the lay off as the reason for unavailability of pay stubs and mentioning job search and BG check as the delay to file transfer? 

 

b) If Consular petition is the only option left out, do we need to make another payment for the processing or the same fees paid will be considered towards the change of petition?

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jairichi Advanced Member

jairichi

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A RFE is issued for my H1 petition asking for my employer C to submit few documents and the beneficiary(me) to submit latest pay stubs which I do not have for past one month. My attorney is suggesting to change it to consular petition now. 

 

a) Cannot we notify USCIS stating the lay off as the reason for unavailability of pay stubs and mentioning job search and BG check as the delay to file transfer? 

 

b) If Consular petition is the only option left out, do we need to make another payment for the processing or the same fees paid will be considered towards the change of petition?

That was expected.

a) No use as you are out of status. It will be consular processing.

b) No extra fees. It will be approved as consular processing with no extra charge.

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t75 Advanced Member

t75

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A layoff makes you immediately out of status.

 

Without paychecks you are out of status, and attorney is assuming that the petition will be approved for consular processing which requires that you exit and reenter on a valid visa.

You have no valid excuse not to exit and reenter.

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Mr.Rao Advanced Member

Mr.Rao

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Hi jairichi and t75. Thank you for your replies so far. Now this is where I have a peak of confusion bundled. My attorney mailed me today the below statements. My attorney knows that I have a valid H1 stamping till Sep 2015 in my passport. Is it how things work?

 

Attorney: If the H1B is approved without an I94 card attached, you do not have the legal ability to continue your employment. You may be able to obtain an I94 at a port of entry or airport, but typically you have to go to a consulate to obtain your visa stamp for this employer.

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jairichi Advanced Member

jairichi

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Hi jairichi and t75. Thank you for your replies so far. Now this is where I have a peak of confusion bundled. My attorney mailed me today the below statements. My attorney knows that I have a valid H1 stamping till Sep 2015 in my passport. Is it how things work?

 

Attorney: If the H1B is approved without an I94 card attached, you do not have the legal ability to continue your employment. You may be able to obtain an I94 at a port of entry or airport, but typically you have to go to a consulate to obtain your visa stamp for this employer.

That is correct. You just need to cross the border and enter with a valid H1B visa and new I797. If you do not possess a valid H1B visa you need to get one from an US consulate.

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jairichi Advanced Member

jairichi

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Thank you Jairichi.

 

Leaving everything aside, how long I can stay in US in this situation? I mean with my lay off date being March 5th, with a petition under process.

You can stay for 180/240* days from the day you became out of status till your H1B petition gets approved. If your H1B is not approved by then you have to leave.

*Check with attorney whether it is 180 or 240 days.

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Mr.Rao Advanced Member

Mr.Rao

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Thank you Jairichi.


 


a) Leaving everything aside, how long I can stay in US in this situation? I mean with my lay off date being March 5th, with a petition under process.


 

b) Will traveling to India now voids my consular petition?

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jairichi Advanced Member

jairichi

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Thank you Jairichi.

 

a) Leaving everything aside, how long I can stay in US in this situation? I mean with my lay off date being March 5th, with a petition under process.

 
b) Will traveling to India now voids my consular petition?

 

b) No, it will not affect your H1B petition.

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jairichi Advanced Member

jairichi

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Thank you Jairichi.

 

My employer is delaying to respond to the RFE.

 

a) Now can I have parallel Petition applied? 

b) If yes, will RFE on the other petition impact the approval of the new petition?

a) Yes.

b) If RFE is based on your credentials it might affect. Otherwise you are fine.

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jairichi Advanced Member

jairichi

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Thank you jairichi.

 

My RFE is asking about SOWs from employer and my pay slips(as they dint apply for consular) now the new employer will apply for consular.

 

In this case what will be the approval chances?

Should be fine and as I said before if your employer's documents are good you will get approval without I94.

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