desperate help need - H1B out of status

R

rpkei

Registered Users (C)
I am from South Korea; I was a student in US for 6 years; in July 2001, company X did my H1B visa; however I never worked for them since IT market was bad; ever since i got my H1B approved, I discountinued my school and lost my student visa;

Now I found a project but Compnay X is not willinging to bring me into their payroll saying that I am out of status since H1B is almost 2 years old;

What do i do now???? I need help desperately;

-i tried to ask them for 2 years "leave of absence" but their lawyer said that wont work;

-can I go to Canada and revalidate my H1B;
-OR can i get back into school somehow;

Any help please.
 
Originally posted by rpkei
I am from South Korea; I was a student in US for 6 years; in July 2001, company X did my H1B visa; however I never worked for them since IT market was bad; ever since i got my H1B approved, I discountinued my school and lost my student visa;

Now I found a project but Compnay X is not willinging to bring me into their payroll saying that I am out of status since H1B is almost 2 years old;

What do i do now???? I need help desperately;

-i tried to ask them for 2 years "leave of absence" but their lawyer said that wont work;

-can I go to Canada and revalidate my H1B;
-OR can i get back into school somehow;

Any help please.
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Since you never worked for the employer that did your H1, you are no longer in H status. BCIS will consider you out of status. You will probably be subject to 3 year/10 year bar if you leave US.

What is your current situation? Are you working/have a job offer/school admission?

You really need a solid professional advice from a good immigration attorney.
 
my current situation is I was banking on this H1B assuming that i have visa validaty until 2004; so I never worked after i got my H1; also never enrolled in school; i might get a consulting job through another company to which i was hoping i will be a sub-contractor using Company X H1B.

any advice, appreciate; thanks
 
If you haven't worked a single day since you got your H-1B 2 years ago, then you have been out of status the whole time. Unfortunately, you can't use your H1-B for another company as that is illegal. BTW, your lawyer is right in saying that your excuse of having a 2 year leave of absence will not work.

nkm-oct23 is right. You really need to speak with an immigration attorney. If you leave the US now, you would be subject to the 3/10 year ban.
 
I'm not certain I agree. Assuming, that you were issued an I-94 when the H-1 was approved (a Change of Status), you assumed H-1 status on approval. That started a 60 day clock for the company to bring you on to their payroll. Assuming that the company did not cancel the visa, you are probably still here with the permission of the Commissioner. This means that the I-94 is valid and, although you are not currently maintaining your status, you are not accumulating overstay toward the 3/10 bar. You may even, arguably, have a cause of action against the employer for unpaid wages.
 
That's interesting. So, if the company did not cancel rpkei's visa, then s/he is still on a valid visa even though she hasn't started working for them yet? How can s/he check to see if the company cancelled the visa? Would they be able to cancel his/her visa retroactively?
 
She has the approved H1B approval notice and that has EAC or WAC, NSC # on it and she can check BCIS online status by punching that receipt/approval #
 
my compnay is very cooperative about this; they never cancelled H1 with INS; My I94 is still valid so as H1 till July 2004;

it seems like converting H1 to F1 and go back to school for PhD seems to be an easier way out of this; any adivce??

thanks
 
For Jim Mills

Originally posted by Jim Mills
I'm not certain I agree. Assuming, that you were issued an I-94 when the H-1 was approved (a Change of Status), you assumed H-1 status on approval. That started a 60 day clock for the company to bring you on to their payroll. Assuming that the company did not cancel the visa, you are probably still here with the permission of the Commissioner. This means that the I-94 is valid and, although you are not currently maintaining your status, you are not accumulating overstay toward the 3/10 bar. You may even, arguably, have a cause of action against the employer for unpaid wages.
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Jim,
What happens if you enter US on a H1 visa but never show up for employment? What if you show up and the company refuses to employ you? Isn't actually working on the job part of H1's requirement? If it isn't, why does quitting your H1 job(without another job) makes you out of status?
I apologize if I asked too many questions.
 
The online case status does not update if H1 is cancelled, at least that's what happened to me. My company cancelled my H1 almost 1 year ago, still the online/phone system shows the H1 as approved.

rpkei--your company is co-operating because probably they don't or do know the consequences if you sue them. If they didn't cancel your H1 and didn't terminate you, they are liable to pay your salary for this whole time.
Better get a advice from a good immigration lawyer for this ASAP.
 
Re: For Jim Mills

Originally posted by nkm-oct23
Jim,
What happens if you enter US on a H1 visa but never show up for employment? What if you show up and the company refuses to employ you? Isn't actually working on the job part of H1's requirement? If it isn't, why does quitting your H1 job(without another job) makes you out of status?
I apologize if I asked too many questions.
Click to expand...

Lots of questions but good ones. I think as far as coming to the US is concerned, if the company has told you not to come, and you come anyway, that could be a problem. A smart employer would immediately cancel the visa and give you a termination letter clearly stating all the circumstance. For some reason lots of employers are not so smart.

There is a difference between not properly maintaining your status (resignation from the sponsoring employer) and accumulating overstay. Generally, as long as the I-94 is valid, you are not accumulating overstay. This is why people who come in on F-1 visas with a "D/S" designation on their I-94 are in better shape, they arguably do not accumulate overstay until INS has actual notice that they are not maintaining their status. The are still subject to detention and removal from the US for not properly maintaining their status, but they are not accumulating overstay.

Please note the language of my post above. There are lots of arguably"'s and "generally"'s and even an "I think". The answers to this are not only critical, they may vary from situation to situation. It is possible that NONE of the above is applicable to your given situatation, even though it may clearly appear applicable. If you are in this type of situation, you DEFINITELY need to consult with an experienced immigration attorney.
 
I was surfing thru' these posts..
One of my friend is also in a similiar situation. His emplyer said he has not cancelled the H1.. so he thought he was fine. Now suddenly he finds that the company is closed!! What should he do?
What happens to the H1 employees when the company is closed? The company never bothered to inform the employee.
Thanks.
 
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