H1B revoked re-filing from abroad?

[critical123]

Hello

I lost my job with my previous employer last year and since moved away for an opportunity abroad. My previous employer now wants to hire me back and is willing to file for h1b transfer. Although I still have apprehensions ..My visa stamp is valid till 2011,

-Am I still eligible for the H1 transfer? Or a new petition need to be filed?
-While the transfer is under process can I move back to US based on my still valid H1b stamp and the petition receipt?
-Do I need an h1b stamp from my home country or country of my current residence?

Here's what I read on an another website:

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Q: I have an H1 visa stamp from my old employer. Now I have received an H1 approval for a new employer. Do I need to get an H1 visa stamped in my passport for my new employer?

A: There is a difference between H1 status and H1 visa stamp. H1 visa stamp is used only to enter into United States. H1 status is required to work in the US for the petitioning employer.

If you have received H1 approval for the new employer (or even receipt of H1 filing for new employer), you can work in the US on H1 legally for the new employer.

If you travel outside the US, if your H1 visa stamp (even if from previous employer) is still not expired and valid, you can use that H1 visa stamp along with H1 petition from new employer to travel back into US. However, if your H1 visa stamp has expired (either from previous or current employer), you must get your H1 visa stamped in your passport before you can travel to United States again.

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Not sure if this applies to my situation.


If anyone has any experience or suggestion regarding these, please share.

thank you

 

[ginnu]

Hello

I lost my job with my previous employer last year and since moved away for an opportunity abroad.
My previous employer now wants to hire me back and is willing to file for h1b transfer. Although I still have apprehensions ..My visa stamp is valid till 2011,
------------if that employer has not revoked your H1 petition by writing to USCIS then why they need to file H1 transfer???
-Am I still eligible for the H1 transfer?
---------H1 transfer is filed in US when you are on valid H1 status with employer A and B need to file H1 transfer if you want to work with B. for H1 transfer you must be in US on valid H1 status.
Or a new petition need to be filed?
---------find the status of your petition from employer if they revoked or not.





thank you

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[critical123]

Of course they revoked my petition, it was last year ..and by law they have to (not talking about benching companies).

I am wondering if I need a new h1 stamp? What I have confirmed so far is that my employer need to file for new H1 petition (since out of status and abroad) without cap.

Also I m wondering if I can travel with my old (revoked) h1b stampp and ONLY the new h1 petition receipt (NOT approval).


thanks

 

[ginnu]

Of course they revoked my petition, it was last year ..

and by law they have to (not talking about benching companies).
--------by law they dont have to revoke H1 petition. Where is the law that says one must revoke the H1 petition by writing to USCIS? if the employer does not have job then they inform that they dont have job and need to provide return ticket.
I am wondering if I need a new h1 stamp?
------your H1 visa stamp is based on H1 that employer has revoked and that stamp is of no use to you.
What I have confirmed so far is that my employer need to file for new H1 petition (since out of status and abroad) without cap.
---------------------That is correct. employer need to file New H1 petition and once gets approved he should send it to you and you need to get H1 Visa stamp based on New H1 approval notice.
Also I m wondering if I can travel with my old (revoked) h1b stampp and ONLY the new h1 petition receipt (NOT approval).
------No, you will need new visa stamp based on new H1 approval notice.

thanks

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[critical123]

I have been told one can return using the old H1 stamp (if not expired) based on the USCIS AC21 memo. Is it not true?

Also does the same hold for the dependents (h4) ?


Does one also have to file for a new H4 petition (for his/her depedents) along with new h1 petition?

thanks

 

[ginnu]

I have been told one can return using the old H1 stamp (if not expired) based on the USCIS AC21 memo. Is it not true?
-----------only if your H1 approval or H1 extension approval or H1 transfer approval has Attached New I-94 with H1 approval from USCIS. You dont have Valid H1 and your H1 petition is revoked by Employer. if employer file Fresh H1 petition and that gets approved from USCIS then it will not have I-94 attached from USCIS and you must get H1 approval and must get H1 stamp to enter US if you have job in US.



Does one also have to file for a new H4 petition (for his/her depedents) along with new h1 petition?
------No.Dependent will get H4 stamp from consulate based on your H1 approval notice and then enter on H4 status.

thanks

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[critical123]

Thanks for your reply,

I am not sure what the I-94 issue has to do with H1? If my employer files for a new petition why (or why not) will it have the I-94 attached? Isn't I-94 only attached at the POE by the immigration officer? I read a few other posts which says one can enter with old H1B stamp and a new H1 approval notice (no I-94 mentioned)

I will appreciate if you can explain.

 

[ginnu]

Thanks for your reply,

I am not sure what the I-94 issue has to do with H1?
If my employer files for a new petition why (or why not) will it have the I-94 attached?
-------- you are NOT on Valid H1 status in US and if employer file fresh H1 for you then USCIS will NOT attach I-94 with H1 approval. if employer file H1 extension or H1 transfer for a person who is on H1 status in US with valid I-94 at the time of filing petition with USCIS then USCIS attach the I-94 with H1 extension or H1 transfer approval notice and I-94 is of same color of H1 EXT or H1 transfer approval and is attached Lower part of approval notice.
Isn't I-94 only attached at the POE by the immigration officer?
-------if One enter with valid Visa stamp then the POE office stamp the WHITE color I-94 .

I read a few other posts which says one can enter with old H1B stamp and a new H1 approval notice (no I-94 mentioned)
--------That is if one has valid H1 extension or valid H1 transfer approval and have Valid H1 visa stamp and are on valid H1 status and working in US and just go out for visit and then come back.

I will appreciate if you can explain.

------ you have to get H1 visa stamp if you get Fresh H1 approved and US employer has job for you.FYI at this time USCIS is after consulting companies and H1 filed by consulting companies are rejected or getting long RFE for more documents. FYI the consulting companies in past kept many H1 holder on Bench and did not pay and violated H1 rule/regulations. Many H1 consulting companies are being investigated by USCIS. Those who have past violations it is not easy to get H1 approval. For more info talk to your future employer or employer lawyer.

 

[critical123]

Ok I understand your point. But why is this bias there anyway? Why can someone who filed transfer/ext inside US is allowed to used the old stamp, while someone filing from abroad cannot use AC21 leeway to enter on the old stamp? Is there any reason or rhyme to it?

Is it risky to attempt that?

thanks,

 

[ginnu]

Ok I understand your point.

But why is this bias there anyway?
------------------- you should ask this from USCIS, DOS and CBP.
Why can someone who filed transfer/ext inside US is allowed to used the old stamp,
--------That is USCIS rule
while someone filing from abroad cannot use AC21 leeway to enter on the old stamp?
--------They are on Valid H1 status in US when H1 extension is filed or H1 transfer is filed and You are NOT on H1 status.
-----------you should ask this from USCIS, DOS and CBP.They are not going to change the Memo/regulation/law for you.
Is there any reason or rhyme to it?

Is it risky to attempt that?
---------------------You will be sent back from POE if you dont get Fresh H1 visa stamp based on your fresh H1 approval notice.
thanks,

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