Urgent advice needed... H1B out of status

[Apache24]

What is the name of your state? Washington

I was on an H1B but my employer laid me off. I had a valid permit for another 2 yrs and also a valid visa, but I was in the country without a job and hence without a proper status for about 7 months. This was couple of yrs back. Now i am out of the country and a new employer has filed my H1B.
Will this be a problem?
I haven't told my new employer about my illegal stay. Should i inform them?
Will the INS know about my illegal stay and deny me entry at the port of entry even if i get my H1B?

 

[ImmigAttyLana]

No, although you may have been out of status since you were not working for the H-1B employer, as long as the I-94 card was still valid even while you were in the US without a valid job, you did not accrue any unlawful presence in the US and this should not impact on your ability to get a new H-1B issued to you and enter the US to work for the new employer.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[ncguy]

I think Lana is right. You are not illegal if the old employer did not withdraw your H1. But your new employer will require latest pay-checks to file for H1 transfer. I am not sure how that will be taken by USCIS

PS : I am not a lawyer so please consult your lawyer.

No, although you may have been out of status since you were not working for the H-1B employer, as long as the I-94 card was still valid even while you were in the US without a valid job, you did not accrue any unlawful presence in the US and this should not impact on your ability to get a new H-1B issued to you and enter the US to work for the new employer.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[ggk]

I thought i read somewhere that H1B status end 10 days after discontinuing employement. getting confused now !!!

 

[ImmigAttyLana]

No, your status terminates the day you are terminated from employment. The 10 day "grace period" is more of a practical pointer than a legal one in that you have about 10 days to leave the US if you plan to leave and if you are not, you need to secure another position relatively quickly (within a few weeks) in order to be eligible for a transfer H-1B.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[Apache24]

Few more clarifications needed.

Lana, thanks a lot for your advice. I think i can sleep well tonight after spending some sleepless nights
thinking about this.
I do have few more queries though.
Will i need to produce my salary slips ever during the processing or at the port of entry to prove
my legal status?
you mentioned that i was out of status and also that my presence was not illegal. I am confused with
the two statements. Can you please clarify?
Also, i have an offer from another company too who is interested in filing my H1. can two different
employers file for the same person's H1 at the same time? Will that create any problems in clearing
one or both of them as i might be hogging the quota and affect some other H1 applicants.

 

[ImmigAttyLana]

If you are going to attempt to do a transfer of a H-1B petition after you have been out of work for a long period of time, the USCIS WILL request proof that you are maintaining valid H-1B status and this is done through paycheck stubs, so if you do not have any recent ones, your H-1B, if approved, will be approved for consular processing and you will need to go to your home country in order to process for a H-1B visa. YOu will not need to show the paycheck stubs at the consulate or at the port of entry; you will only need to show the H-1B visa in your passport, provided you get it at the US Consulate abroad.

As for status maintenance, there is a difference between between out of status and being unlawfully present. YOu can be one but not the other necessarily. IT all depends on what your I-94 expiration date is. If you are here while your I-94 is still valid, even though you may not be working for the H-1B employer, you are not unlawfully present but you ARE out of status. If your I-94 is no longer valid and you are still in the US, you are both out of status AND unlawfully present and the unlawful presence starts to accrue from the date of the I-94 expiration date and once it reaches 180 days, even if you do depart the US, you will be barred from reentry in any other status for a period of 3 years. If you are unlawfully present for 365 days or more, you will be barred from reentry for 10 years.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[Aman Sandhu]

Lana Please give me Advice.

I am on H1B visa. I was not not able to get job due to my sickness. So I don't have any pay slips. My visa is running out of status. My employer asked me to go back to my home country, and come back after proper recovery of my health. I want you advice that If I will go back and will come after 5 month, Is it possible for me to come back with the same employer or I need to refile my H1b. Please suggest me. I am so confused.
Thanks a lot

 

[ImmigAttyLana]

If the H-1B approval notice is still valid 5 months from now or whenever you plan to return AND if the employer still has a position open for you, then you can simply return with a valid H-1B visa and that approval notice.

 

[Aman Sandhu]

Thank you so much Lana

My H1b is valid for next one and half year. One thing more I want know, If I will come back after 6 months, Will it add into my visa limit, I mean My visa will valid for 1 and half or these 6 months will added into my remaining visa limit.
Thanks alot

 

[ImmigAttyLana]

Yes, any time you spent physically outside the US, whether it is 6 months or 6 days, will be able to be recaptured at a later time when you file extensions, as long as you can prove your absence from the US (passport stamps, receipts, etc)

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

 

[Aman Sandhu]

Thanks Lana

One thing I want to know, If I will come back after 6 months, and my employer will deny to provide me job, will I able to transfer my H1b with other company? If suppose I will like to apply H1 again, will it possible for me to apply for H1 as I will have h1b with other company without any pay slips?
Please suggest me.
Thanks

 

[kcdave99]

H1B Out of Status

Hi Lana,

I was released from my project last oct 15, 2008 and never got payslips from my employer until now. After I was released, my company forced me to file a leave of absence for 2 months. After Dec 15 (expiration of leave), they still won't find any work for me. They assured me that they won't cancel my H1B and it's fine with them if I get a new sponsor. If ever I find a new company to transfer my visa, will there be any problems because my last payslip is almost 3 months ago? I'm really worried these days and don't know what to do. I feel that the longer I have no project with them, the harder that I can transfer my H1B visa. Please advise. Thanks!

 

[sandy dh]

Please help me, Its urgent

Hi I am on h1, but I don't have any pay slips as my employer didn't provide a job for me. I am here in US from last 1 year. My h1b is valid till sept 2010. I want to leave this employer. Am i able to transfer my h1 or apply for new H1 on April 2009. ?

 

[ImmigAttyLana]

YOu are not eligible for a transfer since you are out of status but you are not subject to the quota so you can have a new petition not subject to the quota filed on your behalf at any time and you would need to consular process once that petition is approved.