H1 Transfer - Out of Status for 5 weeks - Working on Receipt now.

srocky1

By srocky1,
in H1B : Portability Issues

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srocky1 Newbie

srocky1

Posted
Posted

Hi All, 

 

Such a nice forum where lot of unasked questions were answered. My situation got very complex in last couple of months so I would appreciate any piece of advise in this regard.

 

1. Got laid off on 12th August, 2013. 

2. Contacted new Employer A (Consulting) immediately and they applied H1 transfer (in-house project, regular processing) sometime during early September and received the receipt. They said they would be running the payroll from the next day while I'm looking for a project. I'm still looking for projects now.

3. Meanwhile got a full time offer from a good company and they said they would apply for H1 transfer in Premium processing provided I get the latest H1 transfer receipt and recent paystubs from Employer A. When I talked to Employer A about the offer, he is obviously not happy and is now saying he had got the receipt around September ending and so can run paystubs just for October. He is not giving me the H1 receipt and the paystubs now. 

 

Here are my concerns:

1. Am I out of status from August 13th? 

2. Are there any legal issues that Employer A would face if he runs paystubs from September based on in house project? Can he actually do that?

3. If I get the receipt and paystubs (from say Mid September), Can my new employer apply for COS without any issues? If not should they go for consular processing? How risky it is for me to go with new Employer now? If it is, I have no problems staying with Employer A. 

 

Thanks very much!! 

 

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jairichi Advanced Member

jairichi

Posted
Posted

Hi All, 

 

Such a nice forum where lot of unasked questions were answered. My situation got very complex in last couple of months so I would appreciate any piece of advise in this regard.

 

1. Got laid off on 12th August, 2013. 

2. Contacted new Employer A (Consulting) immediately and they applied H1 transfer (in-house project, regular processing) sometime during early September and received the receipt. They said they would be running the payroll from the next day while I'm looking for a project. I'm still looking for projects now.

3. Meanwhile got a full time offer from a good company and they said they would apply for H1 transfer in Premium processing provided I get the latest H1 transfer receipt and recent paystubs from Employer A. When I talked to Employer A about the offer, he is obviously not happy and is now saying he had got the receipt around September ending and so can run paystubs just for October. He is not giving me the H1 receipt and the paystubs now. 

 

Here are my concerns:

1. Am I out of status from August 13th? 

2. Are there any legal issues that Employer A would face if he runs paystubs from September based on in house project? Can he actually do that?

3. If I get the receipt and paystubs (from say Mid September), Can my new employer apply for COS without any issues? If not should they go for consular processing? How risky it is for me to go with new Employer now? If it is, I have no problems staying with Employer A. 

 

Thanks very much!! 

1. If no pay roll was run you are out of status from Aug 13th.

2. If you started working for employer A they have to pay you by law. Otherwise file a complaint with DOL.

3. Mostly your change of status would be denied and probably you would need consular processing.

 

Ask new employer to file H1B petition as consular processing. Exit and enter US with a valid H1B visa new employer's I797.

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srocky1 Newbie

srocky1

Posted
  • Author
Posted

1. If no pay roll was run you are out of status from Aug 13th.

2. If you started working for employer A they have to pay you by law. Otherwise file a complaint with DOL.

3. Mostly your change of status would be denied and probably you would need consular processing.

 

Ask new employer to file H1B petition as consular processing. Exit and enter US with a valid H1B visa new employer's I797.

 

Hi jairichi,

 

Thanks for the response. I talked to my Employer today and he added a twist to the tail. Since I haven't actually started to work for any client project, he should he wont run the payroll at all and may cancel the in progress petition after he understood that I'm more interested in the full time offer I got. If he does so, I would be out of status completely ( about 3 months) and if new employer applies H1 it would be consular for sure. 

 

I'm supposing it would be far more risky to go out now and get my passport stamped. Do you guys think it is not risky to attend the visa interview with 3 months out of status? How would I answer their question if they ask me to show the paystubs for 3 months? Only other option I have is to stay with him for one year or so, get the H1 transferred and apply for full time after that. 

 

I'l appreciate any advise/thoughts.

 

Thanks! 

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  • 2 weeks later...
jairichi Advanced Member

jairichi

Posted
Posted

I am in similar situation where in I don't have pay stubs from Nov 7th. 7th is my last pay stub run in earlier company. Now there is a new company applying for H1b transfer and will apply early next week since LCA is approved this week. what are my chances of approval ?

You might get your H1B approved but would get an I797B (i.e. without I94). In that case you would need to exit and enter US.

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jairichi Advanced Member

jairichi

Posted
Posted

Hi jairichi,

 

Thanks for the response. I talked to my Employer today and he added a twist to the tail. Since I haven't actually started to work for any client project, he should he wont run the payroll at all and may cancel the in progress petition after he understood that I'm more interested in the full time offer I got. If he does so, I would be out of status completely ( about 3 months) and if new employer applies H1 it would be consular for sure. 

 

I'm supposing it would be far more risky to go out now and get my passport stamped. Do you guys think it is not risky to attend the visa interview with 3 months out of status? How would I answer their question if they ask me to show the paystubs for 3 months? Only other option I have is to stay with him for one year or so, get the H1 transferred and apply for full time after that. 

 

I'l appreciate any advise/thoughts.

 

Thanks! 

If you have reported for work with new employer based on receipt notice you need to be paid by law. Otherwise file a complaint with DOL. Based on your complaint with DOL you could get a cap exempt petition filed by another new employer.

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  • 7 months later...
rahul412 Advanced Member

rahul412

Posted
Posted

Hi Srocky1,

 

Could you please let me know ur consultancy's name which did ur H1b transfer with in-house project. its very urgent as I have been laid off too..

Either file for COS to H4 or B2, or leave US.

But if you go with a shady consulting firm with fake employment, you have to forget US forever.

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