H1B candidate, laid off w/o notice, H1B revoked before COS (H4) was filed, RFE for new H1B


mnidadav

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Hello,

 

I got laid off from my former employer on May 2, 2016 without any prior notice. I immediately pushed towards applying for COS to H4, which was sent out of the attorney's office to USCIS on May 13th (Friday) and was delivered to USCIS on May 14th (Saturday)

 

The receipt date on the receipt notice for H4 petition is May 16th (Monday)

 

Meanwhile, I got a new job offer with a different company on June 8th, and they filed for my H1B on July 19th.

 

On July 27th, I received an RFE for the new H1B, for status maintenance. RFE stated that USCIS revoked my H1B with former employer on May 13th (I later checked the case status online, of my former H1B and is true) and that when I filed for COS to H4 which was delivered to their office on May 14th, that I was already out of status by one day, and that I continued to be in out of status even when my new H1B was filed in July.

 

P.S: I understand that technically I am out of status on the last day of employment, but somehow USCIS is taking the revocation date of May 13th and comparing it to the COS delivery date of May 14th, and saying I was out of status by one day, while filing my H4 petition itself and that I continued to be OOS since then.

 

Therefore, USCIS is asking for evidence that I maintained my status for that one day.

 

1). What evidence should I show here? It was delay in the communication structure (multiple channels) of my husband's company to reach out to their attorney to begin my H4 processing. If I use the strategy of requesting for favorable discretion, as I was trying to maintain best efforts to comply with the law, will the evidence of such delays, be good evidence?

 

2). My former employer (X) never informed me of the revocation application or notice (I was unaware such thing exists until I received this RFE), except that there was a general notice in my package, for visa holders, where there was one line - "X will take the necessary and appropriate steps to notify USCIS of the termination of your employment with the company as soon as you are no longer on the X payroll".

I received my last paycheck for my last working day (5/2) pay dated to May 13th, for the pay period May 1 - May 14. Does that mean I was on the payroll until May 14th? I also received the final paycheck for severance on May 27th.

 

Can any of this be used as a support to state that I tried my best to file for COS immediately and per my last paycheck dated to paydate 5/13 for the pay period 5/1 - 5/14, that I should be on the payroll until May 14th, before the H1B with X can be revoked, per X's quote above?

 

3) Say, I do not want to go through the strategy of favorable discretion as mentioned in 1 and 2, and request USCIS for approval to consular processing, then what should be my action in this regard?

 

3.1 - Should I leave the USA before requesting for Consular processing, with respect to status requirement? Or can the request happen while I am in the United states?

 

P.S: I am aware I need to leave the country if the H1B gets approved w/o I-94 in either case

 

3.2 - Going by what the RFE has to say, I was out of status when I filed for COS to H4, and subsequent H1B, which is about 2.5 months now of total duration of OOS, (which I was made aware only 1 day ago through the RFE), I am concerned about this fact of being OOS for so long for my subsequent visa interview and at the POE. What can I expect?

 

Please advise what should be my immediate step? Should I leave the country? Or because I was made aware of all this while the RFE is pending, am I allowed to stay?

 

Thank you, and appreciate a helpful response to my queries.

 

 

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The employer didn't have to inform you of the revocation.

The employer is required by law to tell USCIS that you no longer work there. So, it was obvious that the H1 would be revoked.

And why did you wait for a lawyer to file the COS? The form is pretty easy, you could have filled it out yourself and sent it earlier.

It was your choice to use a lawyer, so you can not claim any "communication issues."

For the H4, there is no such thing as consular processing. You can always just go abroad, get an H4 visa based on your spouse's H1, and enter with that.

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Hello Pontevecchio & JoeF,

 

I was laid off by company A. Found job with new company B with 2 months gap. H-1B applied in consular processing and its approved without I-94. I have valid H-1B stamping till Oct 2016. Can i cross border at San Diego (San Ysidro or any other) by foot and get my new I-797 activated/get new I-94? or should have to travel by air to leave and renter US? It's bit urgent, please share your thoughts.

 

Thanks in advance,

Raj

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