LayOff: H1 transfer and no paystubs since a month

[colonation712]

Hello,

I was working as a FTE on H1B for one of the fortune 500 companies and I got laid off last week of October this year. I recently got a good offer from new employer and they will be filing my LCA for H1 transfer before end of this week. Its been almost 5 weeks me being without a paycheck.

I heard a recent rule has been passed that there will be a 60-day grace period in layoff situations, but it will be only effective starting January 17th, 2017. Are there any chances that my case will be approved considering recent rule and relatively not a huge gap?

Say if its approved with a consular processing then I need go for visa stamping at home country, due you think I may face any issues at the visa interview? I get a feeling its going to be risky if its consular processing as its more than 1 month gap between employments and its hard to justify if the question arises.

Please help me with my situation with your valuable inputs.

Thanks,

Benny

[shekar11#]

Looks like you are out of status. The 60 day rule will come into effect after Jan 17th 2017. You need to consult an attorney.

[JoeF]

The rule is not active at this point, you mentioned the effective date, so it does not apply to your situation.

Your H1 may be approved without an I-94, so you likely will have to go abroad.

[colonation712]

Appreciate your prompt responses, Shekar and JoeF! Could you please suggest from past experience if this is a common scenario and any chances of getting an approval with I94? If consular process is more than likely, then will there be any issues at the visa interview related to me being out status or the interviewer will understand my situation and excuse me.

As you may know getting a FTE generally takes couple of weeks considering the companies processing times hence a 60-day rule makes sense, but unfortunately it doesn't apply to my situation. I really hope USCIS would understand situation and provide an approval with an I94, but it all depends I believe. Have you ever seen situations like mine and getting an approval with I94 or even with consular process got visa interview done successfully?

Thanks,

Benny

[JoeF]

It depends on the USCIS examiner. They usually are ok with a few days out of status, but 5+ weeks is a lot.

Given that you can not work while the H1 petition is pending (since you are not in valid status), it would be more than 5 weeks. The company could file with Premium Processing, so approval would take 2 weeks. If it is approved without I-94, and you have a valid H1 visa, you can just travel abroad and come back with the visa and a copy of the new approval notice. You'd only need visa stamping if your visa is expired.

 

[colonation712]

OK. Thanks, JoeF! That clarifies my question.