I am very confused can I transfer My H1B,,,, pls help..


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So great to find this Forum,

this is my first post.

I am a architectural designer.I get my H1b at Oct.2009. from my employer MMM

I left on absence from the office since Feb 2011, because of papa was sick in China. The office MMM agree with my unpaid leave, and has not laid me off since then, and they said they will not report to immigration deportment until I back to firm or find another employer.

the office stops to pay me since Feb.

I update my H1B visa in China at March. Multiple entrance 1 year. that s how I get in U.S.at May.

my visa expire march 2012

my H1-b expire Oct 2012 (I get H1b Oct 2009)

However, MMM has finance difficult this year, and laid off 8 people when I was in China. So they do not have money to bring me back to firm.

I will have couple interview next week! If I transfer H1-b to next employer, their attorney will need to collect and submit my last 3 pay stubs to immigration department.(as I know)

So, my question are:

1. Am I status right now is illegal?

2. If it is illegal, and I leave U.S. like next month, will it bring any trouble for me to back to U.S. later time with tourist visa?

3. what should I do if I find a job right now, and want to transfer H1-b?

4, If my H1-b has lose efficacy, can I apply another H1-b?


and my friend find this clause for me, just wonder in which degree it match to my case...thanks! I think I need to have a better understand on my situation before I go and interview with other firms, which will happen next week!


here is the USCIS rule about H-1B laid-off

AILA/VSC Liaison Committee Practice Pointer: VSC Liaison Committee Discusses the VSC's Clarification of Revocation of H-1B Status and Non-immigrant Status

Cite as "AILA InfoNet Doc. No. 09022076 (posted Feb. 20, 2009)"

AILA has received a number of comments on the recent VSC Practice Pointer on H-1B Status and Non-immigrant status (AILA Doc. No. 09021960), and would like to address member concerns.

In the January 21, 2009 VSC liaison minutes (AILA Doc. No. 09012768), VSC discussed the impact of a revocation of an H-1B petition on H-1B portability. VSC indicated that in order to be eligible to "port" to a new H-1B employer, the new petition must be filed before the old petition is revoked or withdrawn by the old employer. VSC did not state that the H-1B nonimmigrant had to be currently maintaining status with the old employer to be eligible for portability, nor did VSC indicate that that it would not exercise discretion allowed under 8 C.F.R. § 214.1©(4) in favor of an extension of status.

Note that VSC does not adjudicate portability. Eligibility for H-1B portability is defined at INA § 214(n) as follows:

1. The foreign national was lawfully admitted

2. the new petition is "nonfrivolous"

3. the new petition was filed before the date of expiration of period of authorized stay

4. subsequent to lawful admission, the foreign national has not been employed without authorization

If an H-1B nonimmigrant meets the above-mentioned criteria, s/he would be eligible to work pursuant to H-1B portability even if s/he was not eligible for an extension or change of status. So, for example, an H-1B nonimmigrant is terminated from her H-1B employer on January 15th. In order to avoid monetary penalties, her H-1B employer requests revocation of the petition that same day, and it is automatically revoked under 8 C.F.R. § 214.2(h)(11)(ii). Two months later, the alien finds a new employer who files a new, non-frivolous H-1B petition on her behalf. Since 1) she was lawfully admitted; 2) the new petition is non-frivolous; 3) her I-94 has not expired and she has not worked without authorization, she is eligible to start working under INA § 214(n). However, she may not be eligible to extend her H-1B without a favorable exercise of discretion under 8 C.F.R. § 214.1©(4)

. This does not mean she is not authorized to work under H-1B portability. What it means is that she may work "until the new petition is adjudicated." Upon the approval of the petition, authorization to accept employment pursuant to H-1B portability terminates, and, if the USCIS declines to favorably exercise discretion under 8 C.F.R. § 214.1©(4) to "forgive" the failure to maintain status and to grant an extension of stay, she instead will need to depart the U.S. and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa from her former employer, she will simply need to depart the U.S. and, upon re-entry, present her old visa with the new I-797 and continue working.

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