H-1 Laid off

T

toasterbiscuit

Registered Users (C)
Just lost my H-1B job 10 days ago...and was wondering whether to go on a Visitor/Student/or remain on H-1. I have validity of my approval notice till Sep 2003.

Some friends are telling me to stay on H-1 for portability reasons.
First, is portability possible for the extent of my H-1 approval (Sep, 2003) or is it just possible, based on ins discretion (of course) but only for 1-2 months from when I lost my job.

Second, I understand it is standard practice for the employer to send a note to INS indicating termination of an H-1 employee. In that case will I still have "lawful" presence in the US for the extent of my H-1 approval (Sep 2003). Also when I leave the country, will INS question me or BAR me if my H-1 has been revoked based on employer sending letter.

Any feedback would be appreciated.
 
No Title

you loose yr status within 10 days of loosing your job. validity on H1b gets null as soon as u loose job there is no grace period. I feel so sorry for this kind of situation.
take care and good luck
 
Oh no. See the info inside

We had promised this document to several of our callers. Well folks here is how it works if you get laid off or your company closes down.

H-1 Holders
If you folks get laid off, you are out of status the day you stop working.

Q. What if your company has promised that they will not revoke your H-1; does that make a difference?

A. It makes some difference. You are still out of status the day on which you stop working. But the dreaded 180 day period that results in the dreaded 3-10 bar* would not apply to you until your I-94 expires or INS catches on that you are out of status.

Q. What if the company keeps you on their pay roll but without pay?

A. INS is unlikely to allow that as being "in status."" Also, I we were representing the company, we would never advise them to take this route. This is dangerous for the company.

Q. What is the company has given you a severance package that includes your getting paid for 2 (or more, or less) months after they laid you off?

A. Technically INS would consider you out of status from the day you stop working. It does not matter if you are still getting paid. That is what they have said in one of their memos (which we find a rather strange interpretation of the law). But as a practical matter, INS requires only pay stubs to prove that you were in status. So you may be able to take benefit of this INS practice.

Q. Should you apply for some other status?

A. Probably yes. Some folks apply for a student status (F-1), some for H-4 or F-2 (if their spouses are on H-1 or F-1) and some for tourist (B-2) or business status (B-1). These options could all work to help you stay in status.

Q. If you covert to another status, can you then convert back to H-1 if you find a new employer?

A. Yes. We have applied for H-1 successfully in cases where the change to another status (F-1 or B-1 etc.) was still pending.

Q. Can you subsequently take advantage of H-1 portability if you convert to another status?

A. The question relates to the following scenario. Let us assume you were laid off on 1 January 2001 (Happy new year :-(). Anticipating this lay off you had already sent your papers for change of status on December 30 to INS, which they received on 31 December. On June 15, INS granted the change of status. If you found an employer or June 16 and started an H-1, can you join them as soon as you get the fee receipt from INS (this is referred to as H-1 portability)?

The answer: it appears that you can but the law is not entirely clear. We are awaiting regulations from INS on this issue.

 

Nevertheless, you should certainly be able to join the employer once you get the new H-1 approval.

 

PS We will be adding to this article several other matter over the next few days. Regards to all. Rajiv and the rest of the gang.
 
Please help!, Lost my job need some info

Hi,

1. April 10, 2002. I was on H1 and My wife was on H4
2. April 11, 2002. My wife got admission in school. She applied for change of status from H4 to F1 and I applied for change of status from H1 to F2.
3. April 12,2002. INS received our applications for change of status and sent us a receipt.
4. May 23, 2002. Change of status is still pending.

Now i have these questions in mind.

1. Is it possible to change from F2 to H1 again. I heard that i have to go back to my home country to change to H1 status. Is this true?
2. If they did not approve my change of status can i still apply for transfer of H1 to other company after several months with any job.
3. Can i transfer to H1 again while the F2 application is pending.

Please Help
 
No Title

1. Yes, possible.
2. Probably not. You might have to apply for a new H-1.
3. Probably yes. We have done it before. There are some legal issues, but I think it is possible.
 
If you lost your job don\'t try to change your status from H1 to F1

First Thanks for your info Mr. Operation. :)

All those people who applied for change of status from H1b to F1 are getting a letter from INS stating that they need to prove that they will go back to there home country after completing their studies and that they will not apply for permanent residence.

If you are planning to come back to H1 from F1 later and apply for green card. I think it can create lots of problems.

Thanks
 
H1B1 Transfer is rejected by INS - Please read the response of INS and suggest

I worked for a company till Sep 15 2001 and got laid off. I got a offer from a new company and they started my H1 Transfer process in October 2001. But due to Lawyer delay, my request has been submitted to INS in November. We got LIN number from INS on December 17 2001.

After receiving LIN number, i started working for the new company. In Feb 2002, we received a letter from INS requesting more evidence for the following items

- My detailed job details and percentage of time i will be spending for each job
- Latest pay slips from my previous employer.

We replied back to INS with the "Detailed Job Details" and latest pay slip i had, which is September 15 2001.

In mid May 2002, we got a approval notice from INS for the requested classification (H1B1), but rejected the H1B transfer to the new company with the following reason.

"In response to this request the petitioner submitted a payment voucher dated September 15, 2001 and a W-2 form for the year 2001. From the evidence of record, the Service asserts that the beneficiary
worked for the previous employer until September 15, 2001. The instant petition was filed with this Service on December 17, 2001, therefore, absent any evidence of employment with the previous employer beyond September 15th 2001. This service concludes that the veneficiary remained our of status from September 16, 2001 until the filing of the petition by the present employer"

But the unclear part to us is, INS send us a "Approval Notice" with the following details

Notice Type: APPROVAL NOTICE
Class: H1B1
Valid from 4/11/2002 to 3/14/2004
Consulate: TORONTO

FYI, my six years stay as H1B worker in US is till 3/14/2004

The first statement of the "Approval Notice" is

"The above petition has been approved for the classification requested"

the later paragraph, says

"It has been determined that the named worker is not eligible for the requested extension of status. Since the worker have been found ineligible for an extension of stay, we have sent notification to the consulate shown above. If you have any questions about visa issuance,
please contact the consulate directly."

Our lawyer and we were unable to interpret the final paragraph of the "Approval Notice" is listed below

"If a visa is issued, upon admission in this classification the worker will be authorized to be employed by the petitioner for the authorized period pursuant to the terms and conditions of the petition."

So the question is: "Can i go to TORONTO consulate and get my VISA? Which makes my status current?"

Please advice for the above mentioned case. I will be thankful to your advices.

Thanks in advance.
 
Hi, here is my thought.

-----------Since INS believes you were out of status, you are not eligible to extend or transfer your H1B. But your new H1B application is approved. Since you are not allowed to extend H1B status in the States, you must go to Toronto to be interviewed for new H1B visa. And INS sent all materials to Toronto. So, it will be Toronto consulate to decide your fate.--------------(above is just my belief). I don\'t know if your out of status would influence your H1B visa application in Toronto consulate.Please seek legal advice. If you want to apply green card later on, you also need to make this out of status thing clear. As I know, one classical question during interview is "were you out of status in the states" . But I don\'t know if it is a big problem to get green card approved. I am not scaring you. Collect correct information and be prepared. Don\'t make wrong move. I suggest you to consult noted immigraiton lawyer.Good luck.
 
important information from a powerful immigration website.

Please read the link very carefully. You will get answer for INS decision on your case: http://www.murthy.com/UDnograc.html
Also, I copy and post the important part here.
______________________________________
No Grace Period for Laid-Off H1B Workers
_______________________________________
... ...Efren Hernandez III, Director of the Business and Trade Services Branch at INS in Washington, D.C. announced in late December 2001 that the INS does not recognize or provide any "grace period" for maintaining status after employment termination. Mr. Hernandez explained this strict interpretation by reasoning that there is no difference between H1B holders and other non-immigrants, like students, to justify a stay in the U.S. beyond the explicit purpose of their admission. Mr. Hernandez admits that this may cause hardship to some terminated or laid off H1B workers, but believes that the INS position is legally justified.
......
Mr. Hernandez addressed the issue of extensions of stay following brief status lapses. In short, the regulations require that an individual be in status at the time an extension of status is requested. Failure to maintain status will result in the H1B petition being granted, if appropriate, without an extension of stay. No I-94 card will be attached to the approval notice. Instead, the beneficiary will be directed to obtain a visa at a U.S. consulate in a foreign country and, only afterward, will return to lawful H1B status by re-entering the U.S. Although INS has a regulation that allows the Service to overlook brief lapses in status, extraordinary circumstances are required. Mr. Hernandez stated that even very short lapses in status are not justified in the context of terminated H1B workers, absent extraordinary circumstances.
Mr. Hernandez specifically negated the existence of a ten-day grace period following employment termination. There are ten-day grace periods allowed in three other instances. These are (a) the H1B worker can be admitted to the U.S. up to 10 days prior to the validity of his/her petition; (b) the H1B worker has a ten-day grace period following the expiration of the period of admission; and (c) in the case of denials of extensions, the H1B worker is given up to ten days to depart the U.S. Unfortunately, termination of employment is not covered by any of these exceptions. \
......
Of course, the rules discussed above also apply to the H-4 family members of a terminated H1B worker. So if the principal H1B worker is deemed not to be maintaining status in the U.S., the INS believes all dependent family members may not be considered to be maintaining status either
-------------
My advice: don\'t believe in any rumor. Search online. NOw it is information era. You can get enough precise innformation online.And even you can find all laws and regulations online.
Good luck, every alien in the States. Be smart to live in a foreign country,
 
got laid off at I-485 stage

Hi,
I got laid off last month. My employer also cancelled H1 and Green Card (i-485). The I-485 application has passed 6 months period. and I have EAD also. I do not have any job. Am I on legal status as I am having EAD till August,2002. Please suggest what should I do now.
Thanks
 
I485 cancellation

Hi there:

I know someone kind of in a same state as yours. Your employer does not have the legal authoity to cancel your I 485 application once it is already 6 months beyond the receipt date of I485. If he has done so, you can challenge it later if your petition is denied. You have EAD, just find a new job and start working on EAD. when EAD expires just get it re-stamped again for another year. Hope it helps

Do not take it as a legal advice. Check with Mr. Khanna or some other good lawyer for legal advice.
 
H-1B to F1

Did you receive such letter that promise INS going back home country in the future? Could you please let me know how you got this information?
 
Maintaining status after losing job by setting up a company

I will be losing my job at the end of this month. Just 2 more days....

Can I set up an LLC (a company in my area of expertise) and sponsor myself for H1 transfer? If yes, what is the minimum amount of money I need to put in the company\'s account? Will 25,000 or 50,000 initially do? What is the minimum I need to pay myself to get the H1 transfer? Do I need to pay myself every month or can I pay myself at the end of the year once? The new company won\'t have much records - no annual reports, no other stuff... What papers would be needed to file for H1?

Will it be better if my spouse who is on H4 sets up the company and sponsors me for H1?

Q. for Rajeev Khanna - have you done this kind of thing before?

Is there any easier way to maintain status? How would a transfer to B1 or any other visa work? Do I just file some form or do I need to be represented by an attorney?

Suppose I set up a company and file for my H1 transfer (assuming it is workable). After a couple of weeks I get some funding for my company from a VC but they decide the structure of the company has to be different. So a new company comes up (it might have some percentage for the VC) and a new H1 sponsorship needs to be done. Since my old company already has applied for an H1 transfer what would the new company do to hire me?

Is there some other visa type L1, E1 that might make better sense in this situation?

What if all this does not work out for a couple of weeks and I am "out of status" till then and then set up a company with a VC and try to do a H1 transfer. Will it work? Or I find a job with some company and they apply for H1 transfer. Will that work?

Sorry for the series of questions. Any quick suggestion/comment/response will be highly appreciated.
 
layoff between 140 and 485

What are the options if the employment is terminated after the 140 has been approved but before the 485 application has been sent out? I was just getting my medical exams completed!

I am close to my 6 yr limit - end of June - after having recaptured time spent outside the US. I had already applied for and was waiting for the 7th yr extension, but I guess that\'s no longer valid due to the termination??
 
I-140 Approved on 5/30/02, but got laid off

My I-140 was approved on 5/30/02, but my posistion got eliminated on 5/21/02. However I am still on payroll until 7/22/02.

Can I still continue my I-485 or Consular Processing if I get a similar job soon?
 
When to file the status switch application

Since there is no grace period for H1B after the lay off, when should one file the application for other visa types (F1, F2, B1, etc.) in order to be not "out of status"? Thanks,
 
I have not swtiched to I-485 yet....

Thanks.

I have not switched from CP to I-485 process. My I-140 got approved at NSC, and my file is being transferred from NSC to NVC at this moment.

Does anyone know how how long it would take for the case transferred from CP to I-485? Or, we simply go ahead file I-485, and then tell NVC/NSC that we are canceling CP process?
 
Did you get any answer to your very interesting questions?

I am in a similar situation, and would really appreciate if you could share your info with us.
Thanks and success!!
 
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