Suggestion Needed

S

styoung

Registered Users (C)
RD: 09/17/2002
ND: 09/30/2002
FP: 10/20/2002
EAD: 05/28/2002


My previous company is not doing well and I were asked to take unpaid leave (my boss is a good man) and it's been five months already. And I just got a new offer and want to apply an H1 transfer. But my lawyer asked me to provide two recent pay stubs from previous company.
My questions are:
1. Can I get H1 transfer without pay stubs?
2. If H1 transfer can not be done without pay stub can I apply for a mutiple H1 instead. If possible Can I start the new job after I get the receipt?
2. My income are very little this year. How much impactit will be if I got an RFE or interview later.

Thanks in advance for any suggestions.

STYOUNG
 
Take the new job based upon EAD not H1. If you are still interested in H1 then you can always file for a new H1.

I know a couple of people in your shoes, who did not have a pay stub for 6 months, but once they got a new job, they transferred their H1. Unlike you they did not even have a 485 pending, which curtailed their options.

Unless you absolutely don't want to be on EAD, I would definitely advise you to use it to change jobs.

To answer your questions:
1. You can always say you were on unpaid leave if your old boss gives you a letter stating the same, and you can enclose a couple of pay stubs that were generated.
2. If the H1 Transfer does not go through you cannot work on a receipt of a new H1.
3. RFE on salary, usually asks for pay stubs, so hopefully you will have generated 6 pay stubs till then, with regards to your W2, write the truth by saying you went on unpaid leave because of some random reason! (You wanted to travel etc.)
 
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Technically, unpaid leave and H-1B are not compatible with each other. This stems from the fact that H-1B must be actively working at all times and receive adequate compensation for work done. Paid programs such as vacation and sick days do preserve "active" status, while unpaid ones such as unpaid leave do not.

Therefore, INS can consider the past 5 months of your unpaid leave as a termination of H-1B status and visa. Your legal immigration status is protected with the pending I-485, however.

Thus, filing for an H-1B transfer is probably not the best idea. Although you can try it and I believe you can even work while the transfer is pending (so called "working on receipt"). But given the information provided, I would advise to use EAD to work for the new company. Or file new H-1B with premium processing, which guarantees either approval/rejection or RFE within 15 days of receipt. You should keep in mind that the new H-1B will count towards the same 6-year limit. Also, you can not work until the new visa is approved.

While starting working on EAD has no further complications, filing for a new H-1B and subsequent working on it actually has. You see, since your previous H-1B status has been effectively terminated, you are an adjustee now. Therefore, in order to start working on the new H-1B you would have somehow to change the status from adjustee to H-1B. I do not know if the formal filing of COS (change of non-immigrant status) applies here. You better ask your lawyer how to approach it correctly - you may have to leave the country, get a new visa stamp abroad and come back on H-1B in order to start working.
 
Thanks for the suggestion.
I have two more questions:
I guess INS will be processing my case in probably one year or so and suppose I will receive RFE at that time. Since I can not show them the W-2 of the previous company, but will the W-2 from the new company be also ok? I heard, INS only cares about the future job.

Thanks!
 
Originally posted by styoung
Since I can not show them the W-2 of the previous company, but will the W-2 from the new company be also ok?
Click to expand...

I guess so.

You would have to explain, however, why the company on the provided W-2 does not match the company in I-140. And that's AC21.

If you are planning to try pulling the trick: "I'm working for one company, but another company sponsors my Green Card,"- I would certainly advise against it. Although it is doable, it might be hard to prove that the sponsoring company indeed intends to employ you in a "permanent" manner whenever you get your Green Card.
 
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