H1 transfer, no pay stubs, but have a letter

[nixone]

What is the name of your state? NY

I have H1-B with starting date Oct 1, 2007. I am not starting with them until Jan 2, 2008 as I am finishing up my master's degree in different state. And the company is ok with me starting later and has given me a letter saying "this person (my name) has given unpaid leave from Oct 1, 2007 to Jan 1, 2008 to complete his master's degree and the knowledge and skill he wil gain from this degree will be very beneficial to our company."

Is it possible to transfer a H1-B to a new company based on that letter after Oct 1 without pay stubs (which I will not have as I will be on unpaid leave)?

Thank you so much Lana.

 

[ImmigAttyLana]

Most likely it will not be approved as a transfer but perhaps for consular processing.

 

[nixone]

Most likely it will not be approved as a transfer but perhaps for consular processing.

Consular Processing means I have to go outside the US and apply for H1-B stamp before I can come in and start working, right?

And there will be a very good chance that I may not get a visa to come in as I have not been in status, right?

Do they (US Embassy or USCIS) consider me out of status as I am not starting my job in Oct 1 with the company that did my H1-B? I am a full-time student until right now and will be that way until Dec 15.

Thanks for your time.

 

[ImmigAttyLana]

I don't think that is a correct assumption. If you are lawfully present in the US (valid I-94) even if you are not maintaining valid status, you are not precluded from getting a visa at a US Consulate abroad. But if you want to avoid that, then start working for the original employer so that a transfer would be approved as a transfer.

 

[nixone]

I don't think that is a correct assumption. If you are lawfully present in the US (valid I-94) even if you are not maintaining valid status, you are not precluded from getting a visa at a US Consulate abroad. But if you want to avoid that, then start working for the original employer so that a transfer would be approved as a transfer.

Thanks for your time. I will not be able to start working for the original company right away as I really want to finish this degree. The company is located in different state and once I leave school, I will probably never finish this degree and I am just less than 3 months away from getting the degree that I always wanted from the school of my dream.

I was doing google search and found out that I can have H1-B from two companies and work for both of them at the same time or work for one for few months and work for another for few months. I will not be working for my original company until Jan, but if I can get a new H1-B for this second company without showing pay stubs from the first one, that would work for me.

Is that a possible solution of my problem? Thanks.

 

[ImmigAttyLana]

Yes, you can have concurrent H-1B but you have to be working for both companies if that's the case. Once 10/1/07 comes around, if your status is H-1B because of the valid COS, then you are out of status if you are not working for that employer and another employer's H-1B petition on your behalf will most likely be approved not as a transfer but as consular processing. You can try to apply, of course, as a transfer but just beware of the risks.

 

[nixone]

Yes, you can have concurrent H-1B but you have to be working for both companies if that's the case. Once 10/1/07 comes around, if your status is H-1B because of the valid COS, then you are out of status if you are not working for that employer and another employer's H-1B petition on your behalf will most likely be approved not as a transfer but as consular processing. You can try to apply, of course, as a transfer but just beware of the risks.

Thanks. If my H-1B is approved as CP and I do not want to take a risk by going outside the country to apply visa, Can I stay in the country and go work for company "A" and forget about company "B"? Is it going to cause me any problem or problem to my greencard process?

Second, can I work for company "B" using company "A" H1-B as most of the consulting companies do? The company that did my H1-B is not a consulting company though. How hard this would be, if my original company is willing to send me to company "B" as a consultant or contract worker?

 

[ImmigAttyLana]

Yes, you can work for company A without jeopardizing anything as long as they still have a job for you.

As for consulting, that would have to be arranged/worked out between you and the two employers but you can only be getting paid by the company who is the actual petitioner of the approved H-1B petition.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[nixone]

Yes, you can work for company A without jeopardizing anything as long as they still have a job for you.

As for consulting, that would have to be arranged/worked out between you and the two employers but you can only be getting paid by the company who is the actual petitioner of the approved H-1B petition.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

Here is what happened to my case. I met with the company lawyer (last Friday) and she said that it is too late to go ahead with my H1-B transfer or new petition. She asked me if I could produce at least 2 pay stubs if asked by USCIS, I said no, and she said my case is too risky to go ahead unless I am ready to go to my home country if apporved as CP. I said no. And the Human Resource lady said we can't go ahead with my application process. The lawyer was not very helpful. I thought a lawyer is supposed make something possible when it seems almost impossible. If it was easy and straightforward, anybody can do it, why do we need trained lawyer. Anyway, I lost my full-time job offer. Another sad part is that I lost my part-time job too as I was working part-time on CPT with the same company and the lawyer told the HR lady that I can't work on CPT starting Oct 1.

Now I am planning on asking the company who did my H-1B part-time work that I can do remotely (while finishing school). Few questions are you, if you do not mind:

1. To be in status, do I need to work full-time or can I work part-time? What about 10 hours per week?
2. Do I need to tell my university about my status change from F-1 to H1? Does USCIS inform them about it?
3. If I am in H-1B, can I be a full-time student and have a graduate assistant position and get tuition waiver and get paid stipined?

Thank you so much for your time and suggestions.

 

[ImmigAttyLana]

You have to maintain status as it has been approved. If your H-1B is for fulltime, you have to be working fulltime. If you want to work parttime, the employer has to file an amended petition reflecting the new number of hours. If you are in F-1 status, you can only work for a limited number of hours on campus and this has to be approved by the foreign student advisor's office.

 

[nixone]

You have to maintain status as it has been approved. If your H-1B is for fulltime, you have to be working fulltime. If you want to work parttime, the employer has to file an amended petition reflecting the new number of hours. .

My H1-B is full-time, I think. It does not say in my 1-94 (unless I have missed it), but the offer letter was for full-time. Anyway, I am not going to ask them to change my hours as I will be working full-time in Jan.

If you are in F-1 status, you can only work for a limited number of hours on campus and this has to be approved by the foreign student advisor's office.

Well, this is a tough question. As of right now, I am in F-1, but from tomorrow, I will be in H1-B. But I am not going to stop going school as I am determined to get my degree unless the universty finds out from me or from USCIS and kicks me out. That was the question I was asking you.

What will happen to my GA position (which I currently hold, 10 hrs/wk) if they find out that I am in H1-B? I am actually thinking about asking 10 more hours as I lost my off-campus job (CPT). Thanks.

 

[ImmigAttyLana]

You cannot work for any employer OTHER than the H-1B employer. Anything else is called unauthorized employment. What you want to do about that is completely up to you; I am simply telling you what the law indicates. You can continue going to school while you work parttime (again, the petition, NOT the I-94, needs to indicate whether it is for fulltime or parttime position).