Current H1B pending renewal and potential layoff urgent!

S

sddesh

New Member
Hi friends,

Any guidance from you in this situation would be great help.

1. My Current H1 is expiring on 03 Aug 12 but my current company has filed renewal and is still pending ( received receipt from USCIS ), Since my current project is cancelled there is a chance that I may loose job before my H1 Approval comes back from USCIS, What should I do in that case ? Can I change my job when my current renewal is pending.
2. Do I have to be a full time paid employee or can I be on unpaid leave of absence or only Paid Time off (PTO) till my H1 approval? Is unpaid leave of absence allowed for a one/two weeks and then I can start using my PTO?
3. In case of layoff does the company continue processing and can they give me H1 Approval receipt, how do I maintain my visa status in that case ? Do I have to go on any other visa till then ? which visa would it be easier to transfer back to H1 once I get new job offer ?
4. In case if I don’t get the approval would that mean I have to apply for new H1 next year ?
5. In case I take an assignment overseas within my company would that affect the h1 processing in anyway ?

Your comments and suggestions would be really helpful to me.

Best Regards,
Sddesh
 
Hi Sddesh:

You should probably consult with an attorney, you're asking lots of questions and only a licensed attorney is truly best-suited to give you the proper legal advice. Second, I am not going to address everything here since I am short on time, however, as for question #1, if you lose your job, you may need to have the new employer file a separate I-129 for you. Good luck, I hope you just keep the job you have (and also keep in mind, if you haven't stayed past the due date on your H1-B and you entered lawfully, you can accept a new job if you're laid off so long as your new employer files a new I-129 on your behalf).

Best,
 
sddesh said:
Hi friends,

Any guidance from you in this situation would be great help.

1. My Current H1 is expiring on 03 Aug 12 but my current company has filed renewal and is still pending ( received receipt from USCIS ), Since my current project is cancelled there is a chance that I may loose job before my H1 Approval comes back from USCIS, What should I do in that case ? Can I change my job when my current renewal is pending.
2. Do I have to be a full time paid employee or can I be on unpaid leave of absence or only Paid Time off (PTO) till my H1 approval? Is unpaid leave of absence allowed for a one/two weeks and then I can start using my PTO?
3. In case of layoff does the company continue processing and can they give me H1 Approval receipt, how do I maintain my visa status in that case ? Do I have to go on any other visa till then ? which visa would it be easier to transfer back to H1 once I get new job offer ?
4. In case if I don’t get the approval would that mean I have to apply for new H1 next year ?
5. In case I take an assignment overseas within my company would that affect the h1 processing in anyway ?

Your comments and suggestions would be really helpful to me.

Best Regards,
Sddesh
Click to expand...

1. you can change your job only after your new employer files for transfer and you obtain a filing receipt from USCIS for the transfer petition.

2. You can't be on unpaid leave - this would violate the terms of the I-129 petition which said you have to work for employer X and get paid a certain salary (part 5 of form I-129). You can take time off - needs to be paid just like if you are working.

3. If you get laid off, you are out of status on the following day. The consequence of this is just one - you can't switch visa classification (e.g. H1B to F or B) without departing the U.S. and re-entering. Your current employer's petition (the one that's pending) technically can continue to be processed and approved. When this happens, you can re-enter. You don't need a new H1B visa, if you have an unexpired one.

3a. If you find a new job, *and* the petition to transfer to the new employer is filed before you get laid off, then you can remain in the U.S. and start working as soon as you get a I-129 receipt.

4. If you don't get approval, you can't work for the new employer. You're bound by the current employer I-129 / I-94 final date. If by "next year" you mean the H-1B annual cap (that gets reset each Oct 1st), then - no, you are not subject to cap because you already hold a H-1B. The only exception to this is if your *current* H-1B was cap-exempt. Google for "cap exempt H1B" to figure out if your current petition is cap-exempt. If it is not, then your new H1B petition will be cap-exempt.

5. No. H1 processing is future employment - start date is in the future. In the interim, you can go overseas and nobody will care.
 
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