Out-Of-Status question

V

vlan

Registered Users (C)
Hi,

I am new to this forum, and would greatly appreciate your opinion on my situation:

My employer has filed I-485 for me a month ago. Now I am getting married and we plan to file I-485 for my husband after that. I know that as long as he is out-of-status for less than 180 days, he can do it. Now he might have an issue with this:

He was working on company A (H1B) and got laid off a few months ago.
Then after two weeks he found a new job with company B, that has filed
for H1 Transfer for him. He got laid off again, after a couple of
months, but his H1 transfer is still in process.

He needs to know if he is out of status the moment he got laid off
from company A, or when he was laid off from company B. One attorney
says that he is still in status as long as his H1 transfer is still
pending, since he does not have to work for the company that filed it.

Any opinion on this is highly appreciated!
 
In the case of H1 visas, either you have a valid H1 and are working for the sponsoring employer or you are a pending applicant (meaning some employer has filed but it has not been adjudicated by the INS) for a H1. In these two situations your status is safe. The general consensus is that if you have a valid H1 and are let go by the sponsor then there is no grace period for fileing for a second H1 ie: the day you are let go, if you do not have another pending application for another H1 ( or some other visa like H4 etc) your valid status is lost.
From what you have indicated he took two weeks from the time he left company A to find company B. In addition it is not clear from your post when company B applied for his transfer. The worst case scenario is that he would have been out of status from the time A let him go till the time B applied for a transfer. After B applied, he would be a pending applicant and and as indicated above his status would be OK.
Of course how seriously INS views this small gap is anybody's guess!!!
 
Thanks a lot for your reply!

This is very helpful for us. Our attorney is of the same opinion, I just wanted some kind of confirmation on this.

Originally posted by Rastamandrum
In the case of H1 visas, either you have a valid H1 and are working for the sponsoring employer or you are a pending applicant (meaning some employer has filed but it has not been adjudicated by the INS) for a H1. In these two situations your status is safe. The general consensus is that if you have a valid H1 and are let go by the sponsor then there is no grace period for fileing for a second H1 ie: the day you are let go, if you do not have another pending application for another H1 ( or some other visa like H4 etc) your valid status is lost.
From what you have indicated he took two weeks from the time he left company A to find company B. In addition it is not clear from your post when company B applied for his transfer. The worst case scenario is that he would have been out of status from the time A let him go till the time B applied for a transfer. After B applied, he would be a pending applicant and and as indicated above his status would be OK.
Of course how seriously INS views this small gap is anybody's guess!!!
Click to expand...
 
My opinion

Vlan,

Usually, INS requires recent paycheck stubs for H-1 transfers. I don’t how your husband was able to provide paycheck stubs due to small gaps you mentioned above. As far as I know based upon my research and reading material all over the place: Your husband is out of status. The big question is: weather INS is going to catch it. May be may be not. One thing could be in your favor and that is: You are the primary beneficiary - so INS may look closely into your background and records rather than your husband’s.

Good Luck,

RamFan
 
I agree with Rastamandrum. Your husband can be considered out of status - if at all - from the time company A let him go and the day B filed his transfer. Also remember, if company A did not cancel his H1 with INS then for all probable reason he is still working for Company A in INS view. Wheather he got paid or he was on an unpaid leave of absence - it does not matter.

So relax.

Actually, - according to my knowledge, if Company A did not inform INS of his layoff or termination then they are entitle to pay the salary legally. (I am not an attorney, Check with your attorney on this one)
 
technically speaking ur husband was out of status ...

that happened when he was laid off the first time ... as per the law you are out of status the day u are laid off and u continue to accrue out of status time until u exit and re-enter the US .....

Even if he filed a H1 transfer 2 weeks after getting laid off, his out of status clock started and never stopped ....

Now as the time period was just 2 weeks and h1 transfer is in progress (probably ending in its approval), I don't think INS will care about it and may overlook it ....

Another thing to check when the transfer approval comes through is that what will the start date for the H1 .... if it covers those 2 weeks then ur husband is covered .....

All the best ....
 
Thanks for your responses!

It looks like he is in status now, and INS is not asking for paychecks for I-485 derivative spouse, so this gap is not visible.

So on I-485 I will put H1B as his current status and wht should I put in Expires On field? His last I-94 expiration date?
 
I-485 - When does his status expire

So if we put his current I-94 expiry date on I-485 form in the When does your status expire field, would this be OK?

Since petition for company B is still pending, his I-94 is for company A...

~vlan
 
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