Long vacation on H1-B

[seige]

Hi Guys,

I have a unique case and would love to get some help from all the members.

I was in US till April when I decided to leave my job and try out a career in India. My employer and I agreed to keep my H1-B valid in case I decide to come back. He even cooperated to offer help finding me a new job if I decide to come back. So in effect, I am on leave with my current employer back in US.

Now, I am thinking of returning back to US because things are not working out in India. I have a few questions around the situation:

1. How long is it ok to stay out of US on H1-B? Are there any issues on returning back? What precautions(documents) should one take to clear immigration without any problem?
2. After I return back, I think my employer will allow me a month to find a new job. What happens if I am unable to find a new job. How soon will I have to leave US again?
3. If I do find a new employer in US, He will get my H1-B transferred. How much time would it take in that? Am I allowed to stay unemployed while H1-B is getting transferred?

 

[kpatel2874]

Hi there Seige:

You are asking questions that should probably be posed to a licensed immigration attorney, that's what they are there for. I would be definitely seek counsel as to the inspection portion of your question, entering the US can be a tricky situation for nonimmigrants and LPRs. As for #3, if you lose your job, so long as you entered the US legally, never worked without permission, and haven't stayed past your H1-B expiration date, then your new employer can file a new I-129 for you (you also need to demonstrate you provided "meaningful work" for your employer, so as not to bring up allegations of fraud). Again, you need to consult with an attorney, don't try to "wing it" on matters like this through a forum.

Best,

Kapesh Patel

 

[easteuropean]

Hi Guys,

I have a unique case and would love to get some help from all the members.

I was in US till April when I decided to leave my job and try out a career in India. My employer and I agreed to keep my H1-B valid in case I decide to come back. He even cooperated to offer help finding me a new job if I decide to come back. So in effect, I am on leave with my current employer back in US.

Now, I am thinking of returning back to US because things are not working out in India. I have a few questions around the situation:

1. How long is it ok to stay out of US on H1-B? Are there any issues on returning back? What precautions(documents) should one take to clear immigration without any problem?
2. After I return back, I think my employer will allow me a month to find a new job. What happens if I am unable to find a new job. How soon will I have to leave US again?
3. If I do find a new employer in US, He will get my H1-B transferred. How much time would it take in that? Am I allowed to stay unemployed while H1-B is getting transferred?

Strictly speaking, unless you were paid by your US employer for the duration you were in India, you no longer have a valid I-129; so re-entering the U.S. on your H-1 visa would be not possible.
Now, this is unlikely to come up at the port of entry, esp. if you were out for less than a month, but this doesn't make it legal - it just postpones the problem for when/if you decide to apply for green card.

Can you find a job while outside of the U.S.? Then the easiest way is to have the new employer file a I-129 (you don't need to wait for October 1, since you are not subject to cap, unless your current I-129 wasn't subject to cap). Then you can travel - even on your current H-1 visa, as the H-1 visa label isn't employer-specific, only the I-129 petition is.

If you have to be in the U.S. while looking for job, then have your current employer file an amendment for the I-129 providing new start date, then once this gets approved, you can travel to the U.S., he will have to start paying you, then you can look for a new job, the new employer will then file for transfer, and you can start working for the new employer as soon as you get the receipt for the transfer I-129.