H1 visa out of status

D

David D Liu

New Member
I am out of status from H1 visa since Jan 1 st. My previous employer did not notice the INS.

I just got a job offer. Can I apply for a new H1 visa or just need to transfer? Or Because I am out of status, I cann\'t apply for any visa???

Please tell me what should I do.

David
 
No Title

Your situation is very tricky. You need to talk to an expert. You might only have the option of applying for a new H-1B, because you cannot file for a "transfer". You are not in any status right now..to transfer. But INS might be able to trace that when they process your case and if they approve the petition, they might ask you to go back to your home country to get it stamped before you can start working. In such cases the approval comes without the attached I-94. When you go back to your homecountry, you out-of-status period overstay would be noted before you are issued another visa. You have hit 180 days of overstay; and so might fit for the 3-5 years bar on re-entry. Talk to an immigration lawyer right now!
 
Debhashish or anyone else...please advise further

I am in a slightly different situation...I have not overstayed. Basically what Debhasish says is that INS may approve transfer but a ban may take effect due to overstay. Am I at similar risk? Please read my situation below.
Left my hourly contract job in Jan (last paystub Dec\'01) and came to India. The employer has not revoked H1 approval notice (infact I wrote to INS that I am leaving for India after end of employment).
Can I get this H1 stamped in consulate or enter with approval notice and previous stamped unexpired H1B visa. Which is better? It seems trying to get it stamped in consulate is better, right?
Now, if I ask employer, he MAY give a current employment letter (but no paystubs). Do I need such a letter for INS verification?
Most importantly, am I risking a ban even if I didn\'t overstay in US?
 
No Title

It all depends on the \'valid until\' date on your I-94. Even though you have been out ot status (without job and without pay stubs), you are not *illegal* unless you stay beyond the date on your I-94. This is what a lot of immigration web sites say. You can apply for a new H1 or transfer. Even if you apply for a transfer without current paystubs, you will most certainly have to travel outside the country to get the visa stamped. Hope this helps.
 
No Title

You are not risking any ban because you returned to India...but try to get the new H-1B stamped before you return. That would solve any headaches later..Many would differ with my suggestion as it is not required to have it stamped if you have an earlier valid stamp and the new approval letter.
 
Another solution

Another solution is .. if your previous employer agrees to sub contract with your new employer till 1 or 2 paystubs are generated and you can use those paystubs for transferring your H1, Iam not sure how practical it is for your situation but I have seen my friends doing this and get a transfer.

SK
 
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