H1B Layoff. Gap of 1 and half months. Transfer to new employer.

[bedardi_visa]

Hello,

Hope everybody is doing well.

I got laid off on March end 2013 without prior notice. I am from non-IT background. I have 6 years of experience on H1B and working directly with employer from start. I-140 got recently approved in April 2013. My 6th year H1B visa and I-94 expires on 15th Sept 2013. While laying off my employer promised not to revoke H1B and I-140.

I didn't apply for transfer to B2 visa as was hopeful to find a job within a month. A month passed quickly, when I realized that I need at-least a consultant to sponsor me. Had hard time finding a consultant. Finally a consultant *A* IT got ready and filed for H1 in premium processing on 10th May 2013. Received RFE.

In mean time I got a full time genuine position from *B* Inc on 1st June 2013 related to my previous experience and education. They are ready to transfer H1.

Q.1.) Chances that my H1B gets approved for 3 years from *B* Inc. (with or without I-94 doesn't really matter).

Q.2.) Can I join the *B* Inc. just with receipt notice? I never applied for COS to any other visa. I was out of status for 1 month and 10 days.

Have anybody gone through H1 transfer with a gap in paystusb? If you have knowledge or experience, please write your suggestion.

Thank you for helping out!

Bedardi_visa.

[JoeF]

Why did you wait 1 1/2 months to ask?

You are out of status. H1 revocation is completely irrelevant.

It is very unlikely that a new H1 would be approved as COS. You would have to leave the country and come back with a new I-94.

[bedardi_visa]

Thank you JoeF for replying.

Good question that why did I wait for 1 and half months. As they say in Sanskrit " Vighna kaalen vipreet buddhi" meaning, in bad times you do wrong things.

I understand that I "was" out of status. Also I understand that I need to go out of country to get new I-94, but that is not a big deal since I live in Los Angeles and Mexico is just 3 hours drive.

My question is: Q.1.) Chances that my H1B gets approved for 3 years from *B* Inc. (with or without I-94 doesn't really matter).

Q.2.) Can I join the *B* Inc. just with receipt notice? I never applied for COS to any other visa. I was out of status for 1 month and 10 days.

Any person with similar experience please reply.

Thank you for reading, replying and understanding my trouble.

Best Regards,

Bedardi_visa

[pontevecchio]

You cannot join on receipt. You have to wait for approval. If by a miracle they give you an I94 your problem is solved. If the petition is approved without status extension leave and come back with a valid visa existing or otherwise and get a new I94.

[JoeF]

Thank you JoeF for replying.

Good question that why did I wait for 1 and half months. As they say in Sanskrit " Vighna kaalen vipreet buddhi" meaning, in bad times you do wrong things.

I understand that I "was" out of status.

And you ARE still out of status.

Also I understand that I need to go out of country to get new I-94, but that is not a big deal since I live in Los Angeles and Mexico is just 3 hours drive.

Giving up the I-94 there and getting a new I-94 is not so easy as you seem to think. They will ask questions, because most people going to Tijuana just keep their I-94s.

I know, I've lived in San Diego...

Q.2.) Can I join the *B* Inc. just with receipt notice?

Certainly NOT. This would only be possible if you are in valid H1 status, which you are not.

[FamilyGuy32]

Hi Bedardi_Visa

Dont worry. I was in a similar situation for 2 months and my H1B got approved and I worked. Not sure it may cause a problem in long run but ideally if your petetion gets approved then you should not have any problem whatsoever and even GC process can start without any issues with the new employer.

Cheers

[nskavv]

Hi Bedardi_Visa

Dont worry. I was in a similar situation for 2 months and my H1B got approved and I worked. Not sure it may cause a problem in long run but ideally if your petetion gets approved then you should not have any problem whatsoever and even GC process can start without any issues with the new employer.

Cheers

 

Hi FamilyGuy32,

 

Can you please share your experience regarding your situation. Did you get RFE for why you were without status for 2 months or any? What about your i94 - did they renew it as well?

 

Thanks!

[nskavv]

Hi bedardi_visa,

 

Do you have any update on your case?

Thanks!

[bedardi_visa]

Hi nskaw,

 

Still no updates.  I will definitely update as soon as any comes.

 

Thanks

 

Bedardi_visa isn't it ?

[FamilyGuy32]

Hi FamilyGuy32,

 

Can you please share your experience regarding your situation. Did you get RFE for why you were without status for 2 months or any? What about your i94 - did they renew it as well?

 

Thanks!

Nope

 

No RFE was given

 

Petetion approved in Normal and NOT Premium as well

 

Same old I94 No renewal

 

Hope that helps

[nskavv]

Nope

 

No RFE was given

 

Petetion approved in Normal and NOT Premium as well

 

Same old I94 No renewal

 

Hope that helps

 

Thank you very much for the information. What about your new employer at that time - did they ask you before filed H1B transfer application why your former employer did not pay you? or you told them that you were laid off for 2 months?

 

Thank you for your time!

[nskavv]

Thank you very much for the information. What about your new employer at that time - did they ask you before filed H1B transfer application why your former employer did not pay you? or you told them that you were laid off for 2 months?

 

Thank you for your time!

 

 

Nope

 

No RFE was given

 

Petetion approved in Normal and NOT Premium as well

 

Same old I94 No renewal

 

Hope that helps

 

Hi FamilyGuy32,

 

Can you please tell me how did you get a new I-94? As I understand you had a new I-797, but old I-94. Did you come to US Consulate abroad to apply for the new H1-B visa stamp in your passport?

 

Thank you very much!

[bedardi_visa]

Hi bedardi_visa,

 

Do you have any update on your case?

Thanks!

Update! 

 

I-797 approved for 3 years based on approved I-140 from previous employer along with I-94 !  As I mentioned, my previous employer didn't cancel the H1 or I-140, which made a difference.  Seems like the officer overlooked the gap in employment since the new position was related to education and experience.  The gap was around 2 and 1/2 months at the time of application in premium processing.  Premium processing result came within 10 days.

 

All being said, now the problem is that new job is very very tuff :( and I am on 3 months probation for performance before getting permanent.... One hurdle cleared other problem already in the horizon......  Only thing I can do is give my best....

 

Thank you all who showed empathy to my problem.

 

Best wishes,

 

Bedardi_visa isn't?

[rahul412]

And you ARE still out of status.

 

It seems like USCIS is not following their rules.

[FamilyGuy32]

Hi FamilyGuy32,

 

Can you please tell me how did you get a new I-94? As I understand you had a new I-797, but old I-94. Did you come to US Consulate abroad to apply for the new H1-B visa stamp in your passport?

 

Thank you very much!

pardon my ignorance 

New I94 meaning the I94 I got attached with the new I797 petetion. I did not come to US Consulate I was in US itself and did not apply for any stamp in my passport as well.

 

Thanks

[pontevecchio]

Good for you. The revocation or lack of regarding the previous H1 petition had no relevance as they are REQUIRED to revoke by Law. The Officer overlooked the gap which is his discretion and right and suggests you have good credentials. This does not mean that all people in your situation would get the extension as a matter of right. Discretionary powers are there for a reason. No rules or laws were broken. Good Luck.