Gurus, please help

J

jbxie70

Registered Users (C)
I am currently in H1B and in the process of transferring my H1B to my new employer (Company B). The paper work for the transferring should go out by tomorrow.

I have a valid visa stamp on my passport based on my former employer (Company A) (expiration date Dec 03, 2003). Now I need to go to Europe this weekend (Otc. 31).

My questions are:

1. If my H1B Tranferring is pending, will my trip to Europe abort my petition for H1B?

2.If the answer to question 1 is no, then can I reenter the US using the Visa I got based on my former employer (Company A)? Here is some info I got from website of ¡°U.S. Department of State Bureau of Consular Affairs" Link

" you changed employers and received a new I-797, Notice of Action, you may reenter the U.S. with a valid visa in the appropriate category and the valid I-797 from your new employer, even though the visa is annotated to reflect your former employer. The Visa Office will not revalidate a visa to reflect a change of employer unless the visa will expire in sixty days or less. "

a. Is the new I797 required the receipt notice or the approval notice?

b. Another problem is that I probably wouldn't get the receipt notice before this weekend. Can I leave this weekend and have my attorney fax the receipt notice or approval notice to Europe so that I can use the valid VISA based on Company A and the receipt notice or Approval notice (for Company B) to reenter the US?
 
bit risky

I am currently in H1B and in the process of transferring my H1B to my new employer (Company B). The paper work for the transferring should go out by tomorrow.

I have a valid visa stamp on my passport based on my former employer (Company A) (expiration date Dec 03, 2003). Now I need to go to Europe this weekend (Otc. 31).

My questions are:

1. If my H1B Tranferring is pending, will my trip to Europe abort my petition for H1B?

+++++ If a person leaves when any non-immigrant petition such as h1 is pending, it is considered abondoned. The petiton which if approved might be valid but the i94 attached would be invalid as it makes no sense.

2.If the answer to question 1 is no, then can I reenter the US using the Visa I got based on my former employer (Company A)? Here is some info I got from website of ¡°U.S. Department of State Bureau of Consular Affairs" Link

+++++You can enter using your old employer valid visa stamp in your passport. if you have another h1 from new employer you can show it to poe officer and can get the i94 expiration date to reflect the expiration date of the new h1 and not the expiration date on your visa stamp.

" you changed employers and received a new I-797, Notice of Action, you may reenter the U.S. with a valid visa in the appropriate category and the valid I-797 from your new employer, even though the visa is annotated to reflect your former employer. The Visa Office will not revalidate a visa to reflect a change of employer unless the visa will expire in sixty days or less. "

a. Is the new I797 required the receipt notice or the approval notice?

++++ you can enter using old visa stamp. if the poe officer questions whether you are going to work for the employer mentioned your visa, you HAVE TRUTHFULLY admit that its the old employer and you will be working for the new employer. YOU NEED TO HAVE "ORIGINAL" APPROVAL NOTICE OF YOUR H1 FROM THE NEW EMPLOYER.

b. Another problem is that I probably wouldn't get the receipt notice before this weekend. Can I leave this weekend and have my attorney fax the receipt notice or approval notice to Europe so that I can use the valid VISA based on Company A and the receipt notice or Approval notice (for Company B) to reenter the US?
+++++ NO. Copy may not be sufficient. See above.

you might have to wait here till you get your h1 approved or even if you have to go to europe you must get the original h1 mailed to you which can be used to enter usa showing the old visa and new h1 approval notice to get correct i94 dates.
 
”+++++ If a person leaves when any non-immigrant petition such as h1 is pending, it is considered abandoned”

---- Not correct, extension in same status is NOT abandoned only change of status is abandoned while you depart US if application pending
 
ginnu

sorry to differ from you!

when a person leaves usa when h1 extension is pending it is considered abondoned. Note that the approved h1 is still valid and not the i94 attached to it.

one of my close friend had this problem 4 years back. he had to travel out of usa for emergency reason when his h1 extension is pending. he came back using the current visa stamp (same employer) which was about to expire in another couple of weeks. Next few days he got his h1 approved with i94 attached to it. his company has to file another h1 extension because his current i94 issued at poe will expire in another 2 weeks and the i94 that came with the h1 approval notice is VOID.
 
Thank you guys for your prompt replies.

My major concern is whether my new pending H1B petition will be abandoned if I leave the US. If my H1B petition is still valid, then I can stay in Europe for a bit longer till my attorney send me the approval notice.

For Ginnu's opinion, I have some confusions about I94. Let's assume I leave this weekend while the H1B petition is pending. I have to surrender my old I94 at the airport. If surrendering I94 doesn't invalid my H1B petition, I might have two new I94s when I reenter US. One comes with the new approval of H1B, which my attorney sends to me while I am in the Europe. The other one is issued by the poe official. This doesn't sound right. Another thing I am not sure is whether my case will be considered as extension, because I am filing for a new H1B for my new employer.

Sagic's opinion makes sense, but your friend's example seems to support Ginnu's idea, that is extension in same status is NOT abandoned if you depart US when application pending, because your friend did get his petition approved even he left the US while his case pending.

Now, my dilemma, I have to leave US this weekend and there is no chance my case get approved by then, let alone getting the approval notice with the new I94. I do want to come back legally after the trip. What should I do now? Gurus, please share your ideas!
 
------ Only change of status is abandoned NOT extension of status in same status. I don’t know your friend case read the below Memo carefully the last paragraph on first page and the Memo is still in effect Read:


http://www.immigration.gov/graphics/lawsregs/handbook/TravPub.pdf


when a person leaves usa when h1 extension is pending it is considered abandoned.
---NO
Note that the approved h1 is still valid and not the i94 attached to it.
------ H1 approved is valid and I-94 is also valid if the person enters US before his H1 is approved by BCIS
one of my close friend had this problem 4 years back. he had to travel out of usa for emergency reason when his h1 extension is pending. he came back using the current visa stamp (same employer) which was about to expire in another couple of weeks.
---- if the friend was out of US when H1 was approved, he could have shown his H1 approval at POE and would have got I-94 valid till new H1 approval notice. I think your friend did not get H1 approved copy in his home country from employer before he entered the US and appeared at POE
Next few days he got his h1 approved with i94 attached to it. his company has to file another h1 extension because his current i94 issued at poe will expire in another 2 weeks and the i94 that came with the h1 approval notice is VOID.
---- Your friend used the current visa stamp that was valid for few days so he got the I-94 till the validity of H1 visa sticker. It seems your friend got H1 approval when he entered the US, if he entered the US before his H1 extension was approved and new I-94 was attached then that I-94 was correct because it was the “last Action” if your friend H1B was approved while he was out of US then he should have got that H1 extension approval and could have showed to inspector at POE. I suspect his H1B was approved while he was not in US and he did not get H1 approval from employer before entering US.
Even if he got I-94 based on past H1 visa stamp and then entered the US with I-94 with few dates validity then he got H1B extension approval his I-94 attached with H1 approval was valid if that approval date was after his entry to US. I don’t know the complete case.
I just state according to MEMO that only change of status is abandoned and extension of status is NOT.
 
agree with ginnu

saigc, please provide some concrete dates and proofs. I guess the company doled some good dough to the lawyer to do a new H1. All they should have done was to file I102 with local office or visit POE to get a new I94 with the corrected date.
Your friend and company got conned by the lawyer.

A petition is considered abandoned only if you are attempting to change status. That is why AP was introduced for I485 filers.
 
Thank you guys for your prompt replies.

My major concern is whether my new pending H1B petition will be abandoned if I leave the US.
----NO if it is H1B extension, if NEW H1B petition then you go out and wait for the H1b approval notice and show the approval and other documents to consulate get your H1B visa stamped in Passport and enter on H1b status. I can not make out if you filed for H1 extension or NEW H1
If my H1B petition is still valid, then I can stay in Europe for a bit longer till my attorney send me the approval notice.
----- If the H1 extension is approved when you are out of US request your employer or Lawyer to mail you the H1 extension approval, show your Passport valid visa and H1 extension approval at POE and you will get I-94 till the validity of extended H1 approval notice
For Ginnu's opinion, I have some confusions about I94. Let's assume I leave this weekend while the H1B petition is pending. I have to surrender my old I94 at the airport.
--- Correct, you surrender your current I-94
If surrendering I94 doesn't invalid my H1B petition, I might have two new I94s when I reenter US.
----- How can you have two I-94? You will surrender your current I-94 when you depart US. If you get your H1 extension approval from your employer while you are out of US and it has extended I-94 attached to it, then you have that I-94 with you but when you enter POE the I-94 attached with H1extension will be taken by POE inspector he will give you white I-94 with validity till your H1 extension approval notice and POE inspector will staple it to your passport. You will have one I-94 in this situation
One comes with the new approval of H1B, which my attorney sends to me while I am in the Europe. The other one is issued by the poe official. This doesn't sound right.
--- Read above
Another thing I am not sure is whether my case will be considered as extension, because I am filing for a new H1B for my new employer.
------- IF it is NEW H1B and NOT extension or H1B transfer you will NOT get any I-94 attached with H1B approval, you need to get H1B Visa stamped out of US and then enter with H1B visa stamp you will get I-94 at POE
Sagic's opinion makes sense, but your friend's example seems to support Ginnu's idea, that is extension in same status is NOT abandoned if you depart US when application pending, because your friend did get his petition approved even he left the US while his case pending.

Now, my dilemma, I have to leave US this weekend and there is no chance my case get approved by then, let alone getting the approval notice with the new I94. I do want to come back legally after the trip. What should I do now? Gurus, please share your ideas!
------ You have to let us know if it is NEW H1B or H1 Extension or H1 Transfer, ask your lawyer who has filed. Or ask the lawyer for the solution who has been paid fees and will guide you.
 
According to my attorney, I am filing a new H1B petition to work for my new employer. I stop working for my former employer last week and my new petition was overnighted to BCIS today. They should have it by 10:30am tomorrow.

One of my questions is that whether my case is considered to be the extension of status? At the same time, I don't feel like my case is changing of status. My employment relationship with my former employer terminate last Thursday. They might have notified BCIS the termination if they acted fast.

The other is that what happens to the I94, since I might get two I94.

Anyway, thanks a lot, gurus. This forum is just great, even better than most of the attorneys.
 
Ginnu, thanks for the great post.

Here is how the attorny checked the box in Form I-129
Link to Form I129: http://www.immigration.gov/graphics/formsfee/forms/files/i-129form.pdf

Part2.
2. Basis for Classification: Box C (Change in preciously approved employment) is checked

4. Requested Action : Box C (Extend or amend the stay of the person since they now hold this status) is checked


So I guess it is either H1B extension or H1B transfer. Shot me if I am wrong.
 
*** How many places you posted the same question?
According to my attorney, I am filing a new H1B petition to work for my new employer. I stop working for my former employer last week and my new petition was overnighted to BCIS today. They should have it by 10:30am tomorrow.

One of my questions is that whether my case is considered to be the extension of status?
---- Ask your lawyer, I can’t reply that question as H1b petition is not prepared by me and I don’t know if it is H1 extension but I feel it may be H1 transfer or New H1

At the same time, I don't feel like my case is changing of status. My employment relationship with my former employer terminate last Thursday. They might have notified BCIS the termination if they acted fast.

The other is that what happens to the I94, since I might get two I94.
----- you have to read the reply in my earlier post
Anyway, thanks a lot, gurus. This forum is just great, even better than most of the attorneys.
 
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