Out of status

L

lac

New Member
My wife was in H1B and got laid off recently, the termination date of the employment is the end of this month (Oct). We are about to file I140 based on my employment. Here are some questions that we hope you guys can give some insights:

1. Is she out of status now? Do we need to file H4 petition now? According to HR of her former company, she is out of status now since she is inactive. By inactive, I mean she is not going to work any more even though she still gets the pay till the end of this month and her company will notice INS at the end of this month (Oct).

2. She got her H1B visa from Canada for a trip right before being laid off. Our questions are:

(a)Can she use this visa on early Nov. and come back safely within the expiration day of her visa, if she is still unemployed and her company has informed the INS of the termination of the employment?

(b)Can she use this visa for the trip and come back if her company extend her termination date of employment to cover her trip? If can, what would this impact on our Green Card Petition?

(c)If , (oh yeah ,if ), she can find a job before the termination day and transfer her H1B status to the new employer, when can she start to work? And again, can she use the H1B Visa she got based on her former employment for her trip? What would this impact on our Green Card Petition?


We really appreciate any inputs you guys might have to our case.
 
Originally posted by lac
My wife was in H1B and got laid off recently, the termination date of the employment is the end of this month (Oct). We are about to file I140 based on my employment. Here are some questions that we hope you guys can give some insights:

1. Is she out of status now? Do we need to file H4 petition now? According to HR of her former company, she is out of status now since she is inactive. By inactive, I mean she is not going to work any more even though she still gets the pay till the end of this month and her company will notice INS at the end of this month (Oct).

2. She got her H1B visa from Canada for a trip right before being laid off. Our questions are:

(a)Can she use this visa on early Nov. and come back safely within the expiration day of her visa, if she is still unemployed and her company has informed the INS of the termination of the employment?
// This is not safe.

(b)Can she use this visa for the trip and come back if her company extend her termination date of employment to cover her trip? If can, what would this impact on our Green Card Petition?
//If she is still on the payroll, then it is OK to travel.

(c)If , (oh yeah ,if ), she can find a job before the termination day and transfer her H1B status to the new employer, when can she start to work? And again, can she use the H1B Visa she got based on her former employment for her trip? What would this impact on our Green Card Petition?
//She can start t owork on the day of receive the receipt of H1 application. She can travel use her old visa and new H1 approval notice. I am not sure if she can travel before new H1 approved. I do not see there is any impact on GC.


We really appreciate any inputs you guys might have to our case.
Click to expand...
 
These are just my views:

-She can use the visa to complete her trip if her employer extends the date of termination and don't inform INS, even if they inform INS, things don't happen overnight but she won't be able to enter if their computers get updated or at immigration they ask some questions and are not satisfied with the answers and call the employer or something, you can't foresee these situations.
- If she finds a job with some other employer in a reasonable amount of time say with in 2 months of her termination, her H-1 can be transferred to the new employer (INS asks for current paystubs, so if the gap is more it might cause problems) and she can start working from the day attorney sends her H-1 transfer papers to INS.
- If she doesn't get a job soon, you might like to transfer her to H-4.
- And it won't affect your green card process at all if both of you maintain legal status, if she doesn't get a job soon and you don't transfer her to H-4, then you might have problems.

Check about all the questions with your attorney.
 
At port of entry

if they ask the question where you are employed...she may have to lie...which is never good...try to avoidoversea journey....
 
lac,

If I-140 is your company petition why do you worry about ur wife status. Her H1- status will be valid till end of this month.

If you file you I-140 and 485 concurently then she will automatically becomes "adjustment of status"

Once you both file your EAD it gets approve then she can work on EAD itself .

If I-140 petition is her company petition then You have to work with her company lawyer.

thanks
 
Thanks a lot for your suggestions, guys. After reading your posts, it seems that my wife is still on H1B status till the end of this month and if she can find the job in a reasonable time (2 month?) then she is still able to transfer her h1b to the new company. But I still have some questions unclear:

1. When is the last day we should file H4 for her if she can not find a job in the reasonable period? The reason we want to transfer her to H4 is because we opted for CP and still want to go that route. ( I140 is based on my employment)

2. If she finds the job and transfers her H1B to new company, can she travel on her H1B Visa she got from Canada (based on her former employer) without approval notice from BCIS? Since her trip is early Nov, I guess she won't be able to get the approval notice from INS when she leave the states even if she is lucky enough (oh, yeah, Only God knows) to find a job.

3. If she go to Mexico the get H4 visa, how many entries she can get?

Any input is highly appreciated.
 
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