H1B Transfer, Cap Exemption and possible out of status

[greenerpastures2013]

Here is my situation:

 

I worked for a ‘Company A’ from Nov, 2010 to August 26, 2013.

 

The ‘Company A’ closed on August 27, 2013. My last Pay Stub says August 15. I was not paid for the work I did from Aug 16 to Aug 26.

 

I worked for his ‘Company A’ on the H-1B visa. The Company A was a Cap-subject employer. So I was counted against the cap in 2010.

 

After the company closed, the ‘Company A’ did not revoke my H-1B and they did not inform the USCIS about anything.

 

When I go to the USCIS website and enter my H-1B receipt number, it still says ‘Acceptance’ and that the application is pending. Which is strange since my previous H-1B was approved two years ago. (it was an extension to the original H1B approved in 2012). Anyhow . . .

 

 

I found another job as fast as I could and was hired by a new company on September 9, 2013. 

 

It took some time to gather all the necessary information and file the new LCA. The new LCA was filed on September 25, 2013.

 

Then, as you know, on Oct 1 the Government shutdown happened. That put a halt to my LCA until the shutdown ended on Oct 17.

 

Now that the shutdown is over, I checked the DOL website today (Oct 19) and my LCA is still ‘in process’.

 

I know that the LCA must be certified before my immigration lawyer can file the I-129 for the new H-1B. I plan to apply for the new H-1B with premium processing to expedite my application to 15 days or less.

 

Here are my questions:

 

1. Am I out of status?

 

2) I am from Canada and I know that Canadians can be in the U.S. visiting without a visa. So can I just say that I was in the U.S. from August 27 to Sept 8 visiting, while searching for a job and attending interviews?

 

3) Will the USCIS approve my transfer?

 

4) Will I be able to be Cap Exempt for this new H-1B for my new employer?

 

(Because I read that if you go from a Cap employer to a Cap employer, since you were counted against the cap once, you will not be subject to the cap again)

 

It has to be cap exempt for me, otherwise as you know my H-1B application will be denied since all the capped H-1B’s have been given out for this fiscal year.

 

5) If I go back to Canada and apply for the H-1B from there, would it be better for me? Will it help my situation in any way, with regard to the transfer and cap-exemption? Or not?

 

6) Is there anything I can do to help my case? Tell the USCIS that since Sept 9 I have been undergoing unpaid orientation training with my new employer? Tell the USCIS that the ‘Company A’ has not paid me since Aug 16 due to some payroll problems, and that is why I changed employers.

 

Any advice or help would be most appreciated.

 

It just seems so odd that the USCIS won’t give any grace period for those who are here in the U.S. on the H-1B and lose their job.

 

Thank you

 

GP

[pontevecchio]

Is it so difficult to stick to the truth? Assuming you are a Canadian CITIZEN leave and come back with the H1 petition approval. Your I94 will be given on entry and you do not need a visa.

[jairichi]

Here is my situation:

 

I worked for a ‘Company A’ from Nov, 2010 to August 26, 2013.

 

The ‘Company A’ closed on August 27, 2013. My last Pay Stub says August 15. I was not paid for the work I did from Aug 16 to Aug 26.

 

I worked for his ‘Company A’ on the H-1B visa. The Company A was a Cap-subject employer. So I was counted against the cap in 2010.

 

After the company closed, the ‘Company A’ did not revoke my H-1B and they did not inform the USCIS about anything.

 

When I go to the USCIS website and enter my H-1B receipt number, it still says ‘Acceptance’ and that the application is pending. Which is strange since my previous H-1B was approved two years ago. (it was an extension to the original H1B approved in 2012). Anyhow . . .

 

 

I found another job as fast as I could and was hired by a new company on September 9, 2013. 

 

It took some time to gather all the necessary information and file the new LCA. The new LCA was filed on September 25, 2013.

 

Then, as you know, on Oct 1 the Government shutdown happened. That put a halt to my LCA until the shutdown ended on Oct 17.

 

Now that the shutdown is over, I checked the DOL website today (Oct 19) and my LCA is still ‘in process’.

 

I know that the LCA must be certified before my immigration lawyer can file the I-129 for the new H-1B. I plan to apply for the new H-1B with premium processing to expedite my application to 15 days or less.

 

Here are my questions:

 

1. Am I out of status?

 

2) I am from Canada and I know that Canadians can be in the U.S. visiting without a visa. So can I just say that I was in the U.S. from August 27 to Sept 8 visiting, while searching for a job and attending interviews?

 

3) Will the USCIS approve my transfer?

 

4) Will I be able to be Cap Exempt for this new H-1B for my new employer?

 

(Because I read that if you go from a Cap employer to a Cap employer, since you were counted against the cap once, you will not be subject to the cap again)

 

It has to be cap exempt for me, otherwise as you know my H-1B application will be denied since all the capped H-1B’s have been given out for this fiscal year.

 

5) If I go back to Canada and apply for the H-1B from there, would it be better for me? Will it help my situation in any way, with regard to the transfer and cap-exemption? Or not?

 

6) Is there anything I can do to help my case? Tell the USCIS that since Sept 9 I have been undergoing unpaid orientation training with my new employer? Tell the USCIS that the ‘Company A’ has not paid me since Aug 16 due to some payroll problems, and that is why I changed employers.

 

Any advice or help would be most appreciated.

 

It just seems so odd that the USCIS won’t give any grace period for those who are here in the U.S. on the H-1B and lose their job.

 

Thank you

 

GP

1. You are out of status from August 16th 2013 till date. File a complaint with DOL against ex-employer for not paying your salary from Aug 16th to Aug 26th 2013.

2. Nope, you cannot do that as you entered on H1B visa and was on H1B status till you lost your job. If you wanted to stay here to look for a job after your last working day you should have left US and entered again as you say Canadians do not need a visa to visit.

3. No one knows. You might get a I797B (that comes with out a I94) and so you would need to exit and enter US to get new I94.

4. You will be cap exempt

5. Yes, possible

6. All you are saying are lies. Do not even attempt that.

 

Talk to a good immigration attorney.