Laid off on H1B Visa

[varunc]

Hey,

I was laid off on H1B visa today and on reading some forums I realize that I have sometime to look for another employer who is willing to file an H1 petition for me. To my understanding, the time frame is a gray area but looks like 30 or 60 days is what is commonly discussed. So here are my questions based on 30 days:

• If I manage to find a new employer and he files the petition within 30 days, can I start wokring for him right away or I have to wait till it is approved? (The assumption is that it's a straight transfer and I do not have to re-enter to get a new I-94)
  
• If the employer files for a petition after 30 days and, say, before 60 days, I may have re-enter the country to get a new I-94. Is this H1B going to be exempt from the yearly CAP quota or will this be like a brand new H1B under the CAP quote(which is already full for this year).
  
• If I do have to leave to re-enter the country for a new I-94, do I also have to get my Visa stamped or only enter US to acquire a new I-94 at the Port Of Entry?
  
• If I cannot manage to find an amployer within 60 days, should I back my bags and leave or there might be a Plan B?
  

I hope I have framed my questiosn correctly.If not, please feel free to ask me further details.

Any help would be greatly appreciated.

[JoeF]

First, if you are laid off, the employer by law has to pay for your flight out of the country, if you wish to leave. That doesn't apply for dependents, though.

Second, you are out of status from the time you are laid off.

Third, USCIS may, but doesn't have to accept a transfer when you are out of status.

Fourth, the best way to stay legal is to immediately file a COS to another status, e.g., B2.

[rahul412]

Hey,

I was laid off on H1B visa today and on reading some forums I realize that I have sometime to look for another employer who is willing to file an H1 petition for me. To my understanding, the time frame is a gray area but looks like 30 or 60 days is what is commonly discussed. So here are my questions based on 30 days:

• If I manage to find a new employer and he files the petition within 30 days, can I start wokring for him right away or I have to wait till it is approved? (The assumption is that it's a straight transfer and I do not have to re-enter to get a new I-94)
  
• If the employer files for a petition after 30 days and, say, before 60 days, I may have re-enter the country to get a new I-94. Is this H1B going to be exempt from the yearly CAP quota or will this be like a brand new H1B under the CAP quote(which is already full for this year).
  
• If I do have to leave to re-enter the country for a new I-94, do I also have to get my Visa stamped or only enter US to acquire a new I-94 at the Port Of Entry?
  
• If I cannot manage to find an amployer within 60 days, should I back my bags and leave or there might be a Plan B?
  

I hope I have framed my questiosn correctly.If not, please feel free to ask me further details.

Any help would be greatly appreciated.

According to below link, you are out of status now.

[kiran234]

If your employment ends with the current employer, you are staying illegally, as there is no official grace period for H1B.

Find a new employer ASAP.

Try to work out with previous employer about last day of your employemt and file an H1B before that date, so that you can continue working with new employer and also remind your employer about below

Your employer will be liable for the reasonable costs of your return transportation if your employer terminates you before the end of your period of authorized stay. Your employer is not responsible for the costs of your return transportation if you voluntarily resign your position. You must contact the Service Center that approved your petition in writing if you believe that your employer has not complied with this requirement.

.......There is no concept of 30 or 60 days.

Shorter the GAP chances are better for getting H1B approved with I94 attached.It all depends on your case adjudicator.

Determine if the Form I-129 was timely filed .

Although timely filing is ordinarily required, the adjudicator has discretion to grant an extension based on an untimely application. In deciding such a case, determine the reasons for late filing and whether the reasons were beyond the alien’s control, the degree of lateness, whether there is any indication that the applicant may have violated status in some other way, whether the applicant is otherwise a bona fide nonimmigrant and whether the applicant has been apprehended and placed in proceedings by the Service.

Read the below Murth article and discuss your case with qualified attorneys .

http://www.murthy.com/2012/09/18/h1b-layoff-strategy-when-changing-h1b-employer/

[WCG_MRT]

Not sure where you read about this 30-60 days time frame to look for a job, but that is patently false. H1-B is your legal status in this country. When you are laid off, the employer has to notify USCIS of this fact and your H1-B is revoked. No H1-B = No legal status. Any time spent in the country after that is illegal. You need to find a job ASAP.

[metroguy]

If you have a paystub (not the final settlement check) in a month you are good to go for that month and so you can transfer your H1 in that month with that paystub. If you dont have a paystub and your new employer transfer your H1B , then USCIS will issue a RFE to seek for paystub to make sure that you maintained your status in US (I was in that situation before). if you are unable to transfer you H1B with in the month you got your last paystub, you have to leave the country so that you have left before you went out of status. Then you have to trasfer your H1 to another company from india and have to reenter US with the new petition provided you have your previous H1B visa in your passport not expired or not getting expired with in next 3-4 months. If not you have to go for stamping in india.

Now a days many desi consultancy companies will do your h1B transfer immediately provided you pay the transfer fee. this is another option for you, so that you can remain in US and search for a better job. Hope this helps.

[JoeF]

Now a days many desi consultancy companies will do your h1B transfer immediately provided you pay the transfer fee.

That's illegal.

[KSRC]

I'm a bit surprised about this post. My understanding about the laying off any employee is to give atleast two weeks notification, before terminating the employment. Is this not true always ? Can the employer fire their employees without giving this two week notification?

Also, about the paying for flight by law, is this also applicable if that employer did not actually bring the employee from overseas in otherwords, if the employee got recruited directly in USA.

Thanks

[rahul412]

Can the employer fire their employees without giving this two week notification?

Yes, they can. But usually, most of the companies have a policy of two week's notice.

[JoeF]

I'm a bit surprised about this post. My understanding about the laying off any employee is to give atleast two weeks notification, before terminating the employment. Is this not true always ? Can the employer fire their employees without giving this two week notification?

2 weeks notice is just a courtesy.

Employment in the US is at will. Both employer and employee can terminate the work relationship with no notice at all.

And in fact, an employer usually never lets a person on the company premises or access company property once the person has been notified. The risk of somebody deleting stuff on company computers is just too great. What generally happens is that laid-off people usually can pack their personal belongings and then they are escorted off the premises.

They may get some severance pay, but that's it.

Also, about the paying for flight by law, is this also applicable if that employer did not actually bring the employee from overseas in otherwords, if the employee got recruited directly in USA.

Yes.

8 CFR 214.2(h):

(E) [/url] Liability for transportation costs. The employer will be liable for the reasonable costs of return transportation of the alien abroad if the alien is dismissed from employment by the employer before the end of the period of authorized admission pursuant to section 214©(5) of the Act. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term "abroad" refers to the alien's last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for an alien obtaining or continuing H-1B status.