H1B transfer after layoff

[cvt20]

Hi All,

I am sharing my experience of being on H1b and then getting laid off (due to company shutdown) recently. Please note that this is my personal experience and not legal advice.

 

My Backgroud: I have done my MS in computer science from a university in the US. I have been on H1B for the last 9 years and have been working as a software engg. I have done a couple of H1B transfers before when changing employers in the past. I joined employer XYZ in November 2010 (on H1B). They started my green card application and was able to get through PERM and I-140 in April 2012.

On April 18, 2014 it was announced that the company XYZ is shutting down that day (it's was startup and hence no warning of any sort). On April 19 onwards I was unemployed and out of status (according to H1b rules). There are a couple of things I did immediately:

1. spoke with a immigration lawyer

2. started job search

I started my job search the very next day was able to get an offer from company ABC that I liked by May 14, 2014 (within 24 days). My new employer ABC started H1b application on May 24 (after collecting relevant docs) and was able to file H1B with USCIS on June 5. The lawyers filed it as exempt of quota (similar to transfer) but with consular processing. That means to be back in status I had to go out of the country to get new I94 and be back in-status before I could join. In addition, since my previous H1b visa stamp had expired on Nov 2013, I had to make a visa interview appointment to get valid visa stamp (since I was going to be out of country). 

The new H1B was approval on June 16 and I got the original I-797B (without I-94 and with counselor processing) on June 20. I flew to India (my home country) on June 24. I made the the visa interview appointment on June 26. The biometrics appointment was a day before.

The interview on June 26 lasted for 2-3 minutes. Questions asked:

1. What do you do for company ABC? I work as a software engineer in their ---- devision and these are my responsibilities.......

2. Is this project internal to ABC? Yes it is completely internal. There is no external entity involved. (I think he wanted to find out if this was a anyway a consulting gig. My employer in the H1b paperwork filing explicitly mentioned that “it is not a consulting or staffing firm”. Looks like the us consulate are being vigilant about that sort of thing.)

3. Can you give more details about the project? I mentioned some more details about the position and responsibilities. (I think he wanted to see if I am truly familiar with the company and the project. Tip: before the interview, read the job description and responsibilities mentioned in H1b paperwork carefully since your answers should be consistent with what’s on the paperwork.)

It was approved and my passport was ready for pick up with in 2 business days at the OFC. I entered back USA on July 2 with a valid visa :)

 

——————

A few H1B transfer related things I learned from this experience (some which you may already know but worth repeating):

 

1. You are in status as long as you have a job (that is payroll is being run for you by your current employer). The last day of your paycheck is the last day of your employment. Also that paycheck has to be a “regular salary” and not severance related. To be considered in status (on H1B), your new employer should have filed for H1B petition with USCIS (ideally before your last day or at the very least within say 1-2 weeks). USICS verifies that you are in-status by looking at your previous paycheck and will need paycheck at most 2 weeks old. If that gap in paycheck is more than that, then it’s hard to prove that you are in status at the time of filing of the new petition.
   
2. After I was laid off I considered 2 options. a: To find new employer ASAP (would take at least 5-6 weeks to get an offer and apply for H1b transfer) OR b: Switch to a consulting firm and get a project with them (some consulting firms can do that in 1-2 weeks). I was advised to stick with the first option and look for a job that I want instead of trying something last minute with a consulting firm since that may create more issues.
   
3. Once I accepted the offer, the lawyers from company ABC started the H1B transfer and they requested consular processing since by the time of application the gap in paycheck was 7 weeks (7 weeks out of status). Each law firm has its own way of handling certain cases and that’s the way this firm handles it. I consulted with another immigration lawyer who suggested that even though you are out of status for 7 weeks, the lawyers can request USCIS to issue I-94 with I-797 approval (since the layoffs happened and there was no notice etc). It is entirely up to USCIS to issue I-94 or not. If I-94 is issued, you become in status again and there is no need to travel out of the country to get back in-status. BUT each law firm has its own process and the law firm handing my H1B transfer chose counselor processing.
   
4. Once you loose your job/get laid off/company shutdown, you are out of status and are expected to leave the US. If you continue to stay and be out of status for 6 months or more then you are not eligible to apply for h1b petition and you have broken the law for sure. Anything below 6 months is up to the USCIS’s discretion to approve your petition or not. The goal should be of course to minimize the length of this period to avoid any complications.
   

[t75]

Other than your posting about 6 months as safe, your experience posting is very helpful.

[wondering]

1.

...and was able to file H1B with USCIS on June 5. The lawyers filed it as exempt of quota (similar to transfer) but with consular processing. That means to be back in status I had to go out of the country to get new I94 and be back in-status before I could join. In addition, since my previous H1b visa stamp had expired on Nov 2013, I had to make a visa interview appointment to get valid visa stamp (since I was going to be out of country).

 

2.

USICS verifies that you are in-status by looking at your previous paycheck and will need paycheck at most 2 weeks old.

 

Can someone please explain 2 points on what was said:

 

1. If my H1B is terminated tomorrow, I file for COS today (preventing issues with status), and get a new H1B filed shortly after (new employer, requesting transfer I assume), do I need a new stamp? My current stamp is valid. But does the "gap in employment" invalidate that stamp? I am hoping the gap to be less than 2 weeks and to avoid having to get restamped. I don't mind travelling for i94, but stamping sucks.

 

2. My employer pays monthly, how am I supposed to have 2 week old checks?

[cvt20]

Other than your posting about 6 months as safe, your experience posting is very helpful.

I did not say that 6 months is safe. There is no such thing as "safe period" when you are out of status. If you stay out of status for 6 months or more then you by US law cannot be granted visa or your petition cannot be approved. Below 6 months, it's up to USCIS to decide whether to approve your petition (no guarantees or no safe period here).

[cvt20]

Can someone please explain 2 points on what was said:

 

1. If my H1B is terminated tomorrow, I file for COS today (preventing issues with status), and get a new H1B filed shortly after (new employer, requesting transfer I assume), do I need a new stamp? My current stamp is valid. But does the "gap in employment" invalidate that stamp? I am hoping the gap to be less than 2 weeks and to avoid having to get restamped. I don't mind travelling for i94, but stamping sucks.

 

2. My employer pays monthly, how am I supposed to have 2 week old checks?

Here are my replies:

1. If you have a valid h1b stamp you need not get another stamp. You will need to get new I-94 for which you have to travel out of the US and enter back.

2. Well, that's fine. The USCIS will want to look at the latest paycheck and as long as the gap is "reasonable" it should work. ("reasonable" depends of USCIS. I am guessing 2-4 weeks is ok. In my case it was 8 weeks which clearly indicates out of status).

This is based on my experience. You want to consult your attorney about your specific case.

[wondering]

Here are my replies:

1. If you have a valid h1b stamp you need not get another stamp. You will need to get new I-94 for which you have to travel out of the US and enter back.

2. Well, that's fine. The USCIS will want to look at the latest paycheck and as long as the gap is "reasonable" it should work. ("reasonable" depends of USCIS. I am guessing 2-4 weeks is ok. In my case it was 8 weeks which clearly indicates out of status).

This is based on my experience. You want to consult your attorney about your specific case.

 

Thank you much for your quick response.