H1B Extension, Transfer, Cap and Layoff Issues

J

jkays94

Registered Users (C)
Hello,

I have searched the forums but did not find the same exact scenario as the one that I am facing.

My 1st H1-B expired on March 1st 04. My extension notice of action from BCIS is dated Dec 29th 03. While my extension is in progress and Company A lays me off before I get a chance to do premium processing (I'm assuming that they will move to cancel the H1 in the event of an across the board layoff and that this could happen in a number of days).

1. Will I become out of status ?
2. What options do I have to remain in the US ? Can I
switch to an alternate visa status B1/B2 ?
3. Can I transfer my pending H1 extension to company B ?
If Company B applies for a new H1 given the cap, will I
be able to remain within the US without working until
the new H1 is approved ? If so what status will I be in ?

Other background information is that I was previously an F1 visa holder, then had an OPT EAD and then moved to H1 status but do not currently have a visa stamp in my passport.

Thank you for your responses and ideas.
 
Why should he go out of status (even if his previous employer cancels his h1) ? He has the receipt... for the h1b transfer from the new employer right??

someone pl. carify.
 
Actually just a small clarification. I haven't applied for transfer but there is a good chance of an indiscriminate layoff which is imminent but may/may not affect me. What this means is while I could get a chance to get a new H1 with company B, that means I would have to wait until October due to the cap issue.

So say the layoff happens tomorrow, my H1 is in the extension phase which has not been approved but I have a receipt notice, from what I have read on the forum it appears that it is near impossible to transfer an H1-B extension to a second employer.

Also confusing is with the H1 cap, say Company B applies for a new H1 on the day of the layoff. Between tomorrow and October, will I be out of status given my extension application was in progress and Company A may withdraw or cancel my H1 ? I believe I won't be able to work whilt the new H1 is in progress and therefore could I jump to B1/B2 to "wind up matters" in the US hoping the new H1 goes through.

Consulting with the lawyer is certainly an inevitable matter should I be affected by the layoff, just trying to get an insight on things so as not to be caught unawares by deadlines, an unscrupulous lawyer and things that need to be done immediately incase the layoff does occur.
 
You are saying that, if your new employer files for an h1 transfer and lets say gets the receipt with the eac number, and your previous employer cancels h1b before you get the (new) final h1b papers, you are out of status.

I was thinking that receipt is enough to stay in status & work, even if you previous employer cancels your current h1.

Why would the cap affect you, you are doing h1b transfer??

someone with more info pl. clarify
thx
 
That is correct. If you are already in H-1B status and are filing for a new H-1B with a new company, you are not subject to the H-1B which only applies to first time H-1B, and you can start working for the second company employer on the basis of the receipt notice alone, not needing to wait for the approval notice before commencing employment (although eventually, of course, that second H-1B would have to be approved).

Even if you do find yourself in the unfortunately situation of having been laid off, although technically you are out of status on the day after you are laid off, practically speaking this may not affect you in a negative way provided you can find a new employer to file a new H-1B petition on your behalf very quickly (within 2-4 weeks). If this is not a possibility, you should file for a change of status to B-2 immediately upon finding yourself laid off, so that you can at least maintain status in the US for purposes of eventually changing status back to H-1B, once you are able to find a willing H-1B sponsor company.
 
Thanks for the responses.

I guess the only burning issue so far is with the H1-B cap having gone into effect already. Can one stay in the US until October (not working) with only a receipt notice and no visa category change (B2) for the new H1 pending its approval ?
 
If you are already in H-1B status, then even if you are laid off and will be looking for another employer to sponsor you for a H-1B, you are not going to be subject to the cap so if you are laid off before you can reapply through a new employer and have to apply for B-2 status in the interim, you can stay in the US pending that decision and look for another employer in the meantime. If you find another employer, you would not be subject to the cap if you are still in the US and have held H-1B status.
 
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