URGENT employer didnt file H1 transfer, for 5 months, out-of-status?

ashwinit

New Member
I was working for company ABC. I had a valid H1 visa and I-797 from company ABC and I-94 card expiring in 2011.
Company ABC was ACQUIRED by Company XYZ.

I joined Company XYZ as part of that acquisition on 16 June 2009 and submitted all my immigration paperwork before joining XYZ.

On 6 November I was told that I would be laid of and that November 20 would be my last day at Company XYZ.

When asked HR for my new H1B transfer approval I-797, which should have been done by the HR before my joining date, as part of on-boarding process.
The HR told me that for some reason they "FORGOT" to initiate my H1 transfer process.

HR along with companies attorneys from Fragomen, told to me that my past 5 months of work for Company XYZ was illegal because they did not do the transfer paperwork for my legal employment in US. This also means that owing to the HR's glitch, I have ended up being in an illegal status in US for last 5 months.

I have all other employment related documentation from Company XYZ, including pay stubs, offer letter, employment agreement, bonus letters, ID badge, I-9 form.

Below are my questions -

1. Should I complain about this to DOL / USCIS to safeguard my situation?
2. Do I have any rights against the company as this happened to me without my fault?
3. I have I-797 from company ABC and recent paystubs from Company XYZ. I also have documents to prove that ABC was acquired by XYZ and I was part of acquisition - will my H1 transfer get approved?
4. What are my chances to re-enter the country in future on H1B or on any other visa?
5. What are the procedures for any employer to file for a H1B transfer (consular process) for me while i am in india, considering my current situation?
6. Any other advice?
 
Your illegal work is a serious issue. You need to speak with another immigration attorney as there are sometimes ways to address an error by an attorney that is no fault of yours. Complaining to the DOL is for not being paid - not your situation.
 
I had a consultation with an immigration attorney about this issue and heres what I was told -

- I should leave US after getting laid off on Nov 20th
- I should find a new employer and get my H1 transferred with CONSULAR PROCESS(non cap) and DO NOT ask for extension of status
- After getting my visa transfer approval papers, I should NOT go to a consulate for a visa interview and new H1 stamp
- Carry the new I-797 original with me and re-entry the US on my old visa stamp (which expires on July 2011)

She specifically mentioned that H1 transfer - consular process is the safest option in my case mentioned above.

Any expert thoughts? or prior experiences?
 
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