H1b cap exempt transfer after h1b revoke

[vrimmi]

I was laid off from my previous job A on 8th Jan, and my employer revoked my H1B petition on 28th Feb. I have valid visa from Emp A until sep 2015

I got a job with Emp B and is willing to transfer my visa in premium processing

What are my options now? My 6 yrs of H1 completes Sep 2015, I also have valid 140 approval from Emp A

Can I ask Emp B to apply for 3 yrs extension based on my 140 approval?

Please advise.

[pontevecchio]

Extension till September 2015 is no problem. If the H1 is revoked was the I-140 revoked? You have to open your mouth and ask. It does not hurt them to leave the I-140 alone. If so 3 year extensions are possible.

[jairichi]

I was laid off from my previous job A on 8th Jan, and my employer revoked my H1B petition on 28th Feb. I have valid visa from Emp A until sep 2015

I got a job with Emp B and is willing to transfer my visa in premium processing

What are my options now? My 6 yrs of H1 completes Sep 2015, I also have valid 140 approval from Emp A

Can I ask Emp B to apply for 3 yrs extension based on my 140 approval?

Please advise.

First you are out of status from 8th January if you have not filed a COS application.

[vrimmi]

Thanks jairichi, pontevecchio

 

I am very well aware that I am out of status since Jan 8th. But changing my status to B1/B2 would have caused more complications since new employer cannot file for transfer until my B1/B2 goes through. So, didnt want to go that route, and I was pretty confident that I would find a new employer within 1-2 months after my last paystub. While filing a cap exempt transfer, USCIS should ignore a brief gap in paystubs, and I have missed only 3 paystubs.

 

1. My I-140 has not been revoked, and I dont think it will be revoked. Can Employer B file my H1B for 3 years from now? i.e Can they file for my H1B from now until April-2017 based on my approved I-140 from Employer A?

2. If I do step 1, will extension from Sep 2015-April 2017 be considered as cap exempt transfer as well? I mean, I know I cannot apply for extension of status while I am OOS, and I am not sure if USCIS would classify Sep'15-Apr'17 approval grant as extension of status at this point.

 

I would like to know what would be a safe approach at this point. Can you please suggest.

[vrimmi]

One more question-

 

I have valid visa stamp until Sep-15 based on Emp A's H1B petition, If B's H1B transfer petition gets approved, will I need a new visa stamp or the existing visa stamp would still be valid even though the petition is revoked?

 

If I dont need a new visa, I just plan to cross the border and return with a new I-94 if my petition is not approved with an I-94 stub.

[jairichi]

Thanks jairichi, pontevecchio

 

I am very well aware that I am out of status since Jan 8th. But changing my status to B1/B2 would have caused more complications since new employer cannot file for transfer until my B1/B2 goes through. So, didnt want to go that route, and I was pretty confident that I would find a new employer within 1-2 months after my last paystub. While filing a cap exempt transfer, USCIS should ignore a brief gap in paystubs, and I have missed only 3 paystubs.

 

1. My I-140 has not been revoked, and I dont think it will be revoked. Can Employer B file my H1B for 3 years from now? i.e Can they file for my H1B from now until April-2017 based on my approved I-140 from Employer A?

2. If I do step 1, will extension from Sep 2015-April 2017 be considered as cap exempt transfer as well? I mean, I know I cannot apply for extension of status while I am OOS, and I am not sure if USCIS would classify Sep'15-Apr'17 approval grant as extension of status at this point.

 

I would like to know what would be a safe approach at this point. Can you please suggest.

3 pay stubs is a considerable amount of gap. Even if your COS to B1/B2 was pending, when a new employer applies a cap exempt H1B petition on approval you could exit and enter US with a valid H1B visa and I797. In this way your COS to B1/B2 would have got canceled.

1. I am not sure till April 2017 but I am very sure till Sep 2015.

2. Yes, it will be considered as cap exempt.

[jairichi]

One more question-

 

I have valid visa stamp until Sep-15 based on Emp A's H1B petition, If B's H1B transfer petition gets approved, will I need a new visa stamp or the existing visa stamp would still be valid even though the petition is revoked?

 

If I dont need a new visa, I just plan to cross the border and return with a new I-94 if my petition is not approved with an I-94 stub.

If your I797 does not have an I94 you need to exit and enter with your valid H1B visa and I797.