kro5665

I got laid off at my last company with 1 day notice, so applied for a
B2 the same day to keep my status legal for 90 days.
In 75 days I got a new job and the new company filed for a H1B
transfer, and I started working for them as soon as the transfer was
filed. I got the receipt but the approval is still going to take a
while.
When the H1B transfer was filed, B2 was still pending, and our
company's attorney did not advice INS to cancel the pending B2
application. (I am not sure where the mistake was it could be mine,
employer or the attorney ). The previous H1B was in California, and
the B2 transfer was also filed in California. While the new H1B
transfer was filed in Texas.

Please advice.

1. Is this an issue?
2. What can I do to revert the damage?
3. What are the odds that the H1B petition be approved/rejected? And
on what basis.
4. Is it still legal for me to continue working?
5. What are the long-term implications, I am looking to file a green
card application also with this new company.


Our attorney has no clue on what to do, he is trying to figure out.
Also he says that although it was a good idea to file for a B2
transfer to keep my status legal, I have lost the privileges available
under H1B portability by filing such a transfer(B2). He goes to the
extent of saying that filing for a B2 was not really required, and
that they have filed for multiple H1B transfers where the gap between
employment was up to 120 days and BCIS still approved the transfers
(no B2 application in between) !!!

I feel I am in a total mess, not knowing what to do? Have any of you
fellows been in a similar situation. Please advice. I'll keep you
posted if there are any updates from my end.

Thanks,



Egor.

Ingo Pakleppa

On Fri, 18 Jul 2003 09:45:28 -0700, kro566 wrote:

    > I got laid off at my last company with 1 day notice, so applied for a B2
    > the same day to keep my status legal for 90 days. In 75 days I got a new
    > job and the new company filed for a H1B transfer, and I started working
    > for them as soon as the transfer was filed. I got the receipt but the
    > approval is still going to take a while.

U-Oh... BCIS policy is to only allow this if there were less than 60 days.
Although in practice, it may not matter much.

    > When the H1B transfer was filed, B2 was still pending, and our company's
    > attorney did not advice INS to cancel the pending B2 application. (I am
    > not sure where the mistake was it could be mine, employer or the
    > attorney ). The previous H1B was in California, and the B2 transfer was
    > also filed in California. While the new H1B transfer was filed in Texas.
    >
    > Please advice.
    >
    > 1. Is this an issue?

Not a huge problem. Your attorney should have included a copy of the B-2
receipt notice with the H-1B. If he didn't, ask him how to straighten it
out.

    > 2. What can I do to revert the damage? 3. What are the odds that the H1B
    > petition be approved/rejected? And on what basis.

Difficult to tell because a lot depends on specific circumstances. But if
your case is clear-cut, my guess is that the petition will get approved.
The big question is whether it will get approved with or without an
extension of stay (that is, with or without an I-94 attached). If it is
without an extension of stay, then you would have to leave the country and
apply for a new H-1B visa.

    > 4. Is it still legal for me to continue working?

See above: this has nothing to do with the B-2 still being pending, but
no.

    > 5. What are the long-term implications, I am looking to file a green
    > card application also with this new company.

I don't think there are any.

    > Our attorney has no clue on what to do, he is trying to figure out. Also
    > he says that although it was a good idea to file for a B2 transfer to
    > keep my status legal, I have lost the privileges available under H1B
    > portability by filing such a transfer(B2). He goes to the extent of
    > saying that filing for a B2 was not really required, and that they have
    > filed for multiple H1B transfers where the gap between employment was up
    > to 120 days and BCIS still approved the transfers (no B2 application in
    > between) !!!

Yikes. You need a new lawyer. It used to be true that the B-2 wasn't
required, but BCIS now has a zero-tolerance policy, and it indeed is
required.

Also, the portability/transfer privilege applies whether or not you
applied for a B-2; the governing criterion is the time gap between the old
and new job.

Since your attorney doesn't see to be of much help here, here is what I
would do - use at your own risk, of course: Wait until the new H-1B is
approved. If you have an unexpired H-1B visa in your passport, leave the
US - just go to Canada or Mexico. Be sure to surrender your I-94 when you
leave, to US authorities if going to Mexico, or to Canadian authorities if
going to Canada (this is not trivial! US and Canadian immigration is not
really set up to collect the I-94s). This will automatically cancel your
B-2 application. Then return to the US, filling out a new I-94 (there is a
$6 fee for that).

If you don't have an H-1B visa, consider getting one from St. Louis or
your home country, if it is not too difficult.

Also, you can write a letter to BCIS, including receipt notices for both
cases, and explain that you want to withdraw the pending B-2 (I would wait
until after the H-1B is approve to ensure that it doesn't get messed up
and accidentally cancelled).

If you used premium processing, your attorney may be in a better position
to handle this because he can communicate with BCIS by email.

But, quite frankly, I wouldn't worry too much about it.

    > I feel I am in a total mess, not knowing what to do? Have any of you
    > fellows been in a similar situation. Please advice. I'll keep you posted
    > if there are any updates from my end.
    >
    > Thanks,
    >
    > Egor.

--
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Teich

I am just being curious...did you file the I-539 petition to switch to a B-2
yourself, or did you use your attorney?

I am now debating whether I should spend a few hundred dollars to make sure
that my I-539 is done correctly. My situation is complicated by the fact
that I-140/I-485 petitions had been filed but were recently withdrawn.

I worry about the small but remote possibility that the BCIS might find my
I-539 incomplete during their "Initial Processing" and deny my I-539
petition, causing me to go out of status

Teich

wrote in message
news:[email protected]...
    > I got laid off at my last company with 1 day notice, so applied for a
    > B2 the same day to keep my status legal for 90 days.
    > In 75 days I got a new job and the new company filed for a H1B
    > transfer, and I started working for them as soon as the transfer was
    > filed. I got the receipt but the approval is still going to take a
    > while.
    > When the H1B transfer was filed, B2 was still pending, and our
    > company's attorney did not advice INS to cancel the pending B2
    > application. (I am not sure where the mistake was it could be mine,
    > employer or the attorney ). The previous H1B was in California, and
    > the B2 transfer was also filed in California. While the new H1B
    > transfer was filed in Texas.
    > Please advice.
    > 1. Is this an issue?
    > 2. What can I do to revert the damage?
    > 3. What are the odds that the H1B petition be approved/rejected? And
    > on what basis.
    > 4. Is it still legal for me to continue working?
    > 5. What are the long-term implications, I am looking to file a green
    > card application also with this new company.
    > Our attorney has no clue on what to do, he is trying to figure out.
    > Also he says that although it was a good idea to file for a B2
    > transfer to keep my status legal, I have lost the privileges available
    > under H1B portability by filing such a transfer(B2). He goes to the
    > extent of saying that filing for a B2 was not really required, and
    > that they have filed for multiple H1B transfers where the gap between
    > employment was up to 120 days and BCIS still approved the transfers
    > (no B2 application in between) !!!
    > I feel I am in a total mess, not knowing what to do? Have any of you
    > fellows been in a similar situation. Please advice. I'll keep you
    > posted if there are any updates from my end.
    > Thanks,
    > Egor.

kro5665

I filed it myself it seemed very trivial. First time they rejected
(response was in 2 days) saying that the fee was not sufficient (my
check was for 120.00$ ), they said it changed to 140.00$, I resend the
same day, check was cashed in 4 days, and receipt was issued in 3
days, but there has been no response yet ( it has been 4 months since
I resend the I-539 ). That was in California.

Ingo, thanks for the reply, I'll be taking the route to get it stamped
from St. Louis or my home country, as soon as the approval for H1B is
received.



"Teich" wrote in message news:...
    > I am just being curious...did you file the I-539 petition to switch to a B-2
    > yourself, or did you use your attorney?
    >
    > I am now debating whether I should spend a few hundred dollars to make sure
    > that my I-539 is done correctly. My situation is complicated by the fact
    > that I-140/I-485 petitions had been filed but were recently withdrawn.
    >
    > I worry about the small but remote possibility that the BCIS might find my
    > I-539 incomplete during their "Initial Processing" and deny my I-539
    > petition, causing me to go out of status
    >
    > Teich
    >
    > wrote in message
    > news:[email protected]...
    > > I got laid off at my last company with 1 day notice, so applied for a
    > > B2 the same day to keep my status legal for 90 days.
    > > In 75 days I got a new job and the new company filed for a H1B
    > > transfer, and I started working for them as soon as the transfer was
    > > filed. I got the receipt but the approval is still going to take a
    > > while.
    > > When the H1B transfer was filed, B2 was still pending, and our
    > > company's attorney did not advice INS to cancel the pending B2
    > > application. (I am not sure where the mistake was it could be mine,
    > > employer or the attorney ). The previous H1B was in California, and
    > > the B2 transfer was also filed in California. While the new H1B
    > > transfer was filed in Texas.
    > >
    > > Please advice.
    > >
    > > 1. Is this an issue?
    > > 2. What can I do to revert the damage?
    > > 3. What are the odds that the H1B petition be approved/rejected? And
    > > on what basis.
    > > 4. Is it still legal for me to continue working?
    > > 5. What are the long-term implications, I am looking to file a green
    > > card application also with this new company.
    > >
    > >
    > > Our attorney has no clue on what to do, he is trying to figure out.
    > > Also he says that although it was a good idea to file for a B2
    > > transfer to keep my status legal, I have lost the privileges available
    > > under H1B portability by filing such a transfer(B2). He goes to the
    > > extent of saying that filing for a B2 was not really required, and
    > > that they have filed for multiple H1B transfers where the gap between
    > > employment was up to 120 days and BCIS still approved the transfers
    > > (no B2 application in between) !!!
    > >
    > > I feel I am in a total mess, not knowing what to do? Have any of you
    > > fellows been in a similar situation. Please advice. I'll keep you
    > > posted if there are any updates from my end.
    > >
    > > Thanks,
    > >
    > >
    > >
    > > Egor.

Teich

I am just being curious...did the extra delay of a few days (due to the
incorrect fee) cause you to be out of status for a few days?

I filed my I-539 yesterday while my last day of work is two days from now.
Hopefully, with fingers crossed, that my application will be accepted
(instead of having it bounce back to me).

Teich

wrote in message
news:[email protected]...
    > I filed it myself it seemed very trivial. First time they rejected
    > (response was in 2 days) saying that the fee was not sufficient (my
    > check was for 120.00$ ), they said it changed to 140.00$, I resend the
    > same day, check was cashed in 4 days, and receipt was issued in 3
    > days, but there has been no response yet ( it has been 4 months since
    > I resend the I-539 ). That was in California.
    > Ingo, thanks for the reply, I'll be taking the route to get it stamped
    > from St. Louis or my home country, as soon as the approval for H1B is
    > received.
    > "Teich" wrote in message
news:...
    > > I am just being curious...did you file the I-539 petition to switch to a
B-2
    > > yourself, or did you use your attorney?
    > >
    > > I am now debating whether I should spend a few hundred dollars to make
sure
    > > that my I-539 is done correctly. My situation is complicated by the
fact
    > > that I-140/I-485 petitions had been filed but were recently withdrawn.
    > >
    > > I worry about the small but remote possibility that the BCIS might find
my
    > > I-539 incomplete during their "Initial Processing" and deny my I-539
    > > petition, causing me to go out of status
    > >
    > > Teich
    > >
    > > wrote in message
    > > news:[email protected]...
    > > > I got laid off at my last company with 1 day notice, so applied for a
    > > > B2 the same day to keep my status legal for 90 days.
    > > > In 75 days I got a new job and the new company filed for a H1B
    > > > transfer, and I started working for them as soon as the transfer was
    > > > filed. I got the receipt but the approval is still going to take a
    > > > while.
    > > > When the H1B transfer was filed, B2 was still pending, and our
    > > > company's attorney did not advice INS to cancel the pending B2
    > > > application. (I am not sure where the mistake was it could be mine,
    > > > employer or the attorney ). The previous H1B was in California, and
    > > > the B2 transfer was also filed in California. While the new H1B
    > > > transfer was filed in Texas.
    > > >
    > > > Please advice.
    > > >
    > > > 1. Is this an issue?
    > > > 2. What can I do to revert the damage?
    > > > 3. What are the odds that the H1B petition be approved/rejected? And
    > > > on what basis.
    > > > 4. Is it still legal for me to continue working?
    > > > 5. What are the long-term implications, I am looking to file a green
    > > > card application also with this new company.
    > > >
    > > >
    > > > Our attorney has no clue on what to do, he is trying to figure out.
    > > > Also he says that although it was a good idea to file for a B2
    > > > transfer to keep my status legal, I have lost the privileges available
    > > > under H1B portability by filing such a transfer(B2). He goes to the
    > > > extent of saying that filing for a B2 was not really required, and
    > > > that they have filed for multiple H1B transfers where the gap between
    > > > employment was up to 120 days and BCIS still approved the transfers
    > > > (no B2 application in between) !!!
    > > >
    > > > I feel I am in a total mess, not knowing what to do? Have any of you
    > > > fellows been in a similar situation. Please advice. I'll keep you
    > > > posted if there are any updates from my end.
    > > >
    > > > Thanks,
    > > >
    > > >
    > > >
    > > > Egor.