H1 transfer in case of maternity


nits.kumar

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My wife entered us on L2 visa in 2011 as my dependant

in October 2013 we both moved to H1 B

But due to maternity my wife had to stop working right from 1st Octover 2013

When she contacted back to her employer they informed that her current contract with client terminated and said my wife is no more his employee from the date contract terminated.

He denied to generate payroll for her but said he is not revoking her h1 and she can find a job for her and he is fine for cop to cop or H1 transfer.

Now my wife got a job and current employer is trying to file for her H1 transfer where we are expecting RFE and we are expecting with after producing her delivery related documents it may get cleared.

 

My question is it is March going on and its touching 6 months. Is it ok if her H1 trasnfer filled after 31st March (After 6 months for her out of status) or we should try to put her H1 transfer before 31st any how?

 

 

 

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My wife entered us on L2 visa in 2011 as my dependant

in October 2013 we both moved to H1 B

But due to maternity my wife had to stop working right from 1st Octover 2013

When she contacted back to her employer they informed that her current contract with client terminated and said my wife is no more his employee from the date contract terminated.

He denied to generate payroll for her but said he is not revoking her h1 and she can find a job for her and he is fine for cop to cop or H1 transfer.

Now my wife got a job and current employer is trying to file for her H1 transfer where we are expecting RFE and we are expecting with after producing her delivery related documents it may get cleared.

 

My question is it is March going on and its touching 6 months. Is it ok if her H1 trasnfer filled after 31st March (After 6 months for her out of status) or we should try to put her H1 transfer before 31st any how?

Did she apply for FMLA while working with her ex-employer? 6 months on maternity leave is not possible. She should have applied for COS to H4 if she did not intend to work for 6 months.

Her cap exempt H1B petition may get approved without an I94. She would need to exit and enter US with a valid H1B visa and new I797.

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Did your wife deliver on Oct 1 or did her physician mandate bed rest? If not, pregnancy is not a legitimate excuse for not working. Women often work until the day of delivery.

 

If you wife chose not to work, her first employer was correct to terminate her and revoke her H1B.  If she was unable to work (doctor's orders), her employer has a problem.  Since it sounds like she was not working for him before her H1B, she had not earned paid time off and he had no obligation to pay her for not appearing due to "maternity".

 

SInce she knew she was out of status, she should have COS to H4.  Her excuse is not legitimate since a normal maternity leave is 6 or 8 weeks and she has taken 6 months.  Her new H1B will likely be approved as consular processing and she will have to exit for H1B stamping and reentry since she has failed to maintain proper status. Don't expect to use the baby as a reason not to exit for stamping.

 

 

 

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jairichi - She did not intent to take take leave for 6 months and informed properly that she will join back in 6 weeks. Anyways thats a different story. Did you mean it will not be considered as H1 transfer but reinstate of cap exempt H1?

 

t75 - My wife was suggested to bed rest by her doctor because her pregnancy was a high risk one. Though i cannot understand why you need to know all this to suggest a solution to the current problem. Moreove instead of going into who is correct and who is not, my simple question is about 6 months deadline. Should her H1 transfer receipt be generated within 6 months or its ok if it generates after 6 months?

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jairichi - She did not intent to take take leave for 6 months and informed properly that she will join back in 6 weeks. Anyways thats a different story. Did you mean it will not be considered as H1 transfer but reinstate of cap exempt H1?

 

t75 - My wife was suggested to bed rest by her doctor because her pregnancy was a high risk one. Though i cannot understand why you need to know all this to suggest a solution to the current problem. Moreove instead of going into who is correct and who is not, my simple question is about 6 months deadline. Should her H1 transfer receipt be generated within 6 months or its ok if it generates after 6 months?

 

There is nothing called H1B transfer. It is a new H1B petition that is cap exempt.

And, what t75 asked does make sense. If your wife's doctor advised bed rest for her and if USCIS is/was apprised of this situation it might help her case.

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