Topper

Hello,

I have a question re. the H1-B laws that I am posting here for a
friend.

Assume a person is working for company A and company B files for a
transfer of his H1-B visa with a future start date (2 months later).
Now, if the person gets laid off from company A 2 weeks after company
B has filed for his visa, would the person be in status or out of
status for the next 1.5 months, especially since the petition was
filed while he was in status? The person is already in the U.S. Please
let me know at your earliest so we can figure out what to do for him
next.

Thanks for your help,
Topper

Topper

Hi,

Please let us know soon. We spent about an hour trying to find similar
posts on this and other forums, but were unsuccessful and would
appreciate it someone could help us in this matter as we need to
decide soon.

Appreciate your help.
Topper

Sylvia Ottemoeller

"Topper" <[email protected]> wrote in message
news:[email protected] om...

    > I have a question re. the H1-B laws that I am posting here for a
    > friend.
    > Assume a person is working for company A and company B files for a
    > transfer of his H1-B visa with a future start date (2 months later).
    > Now, if the person gets laid off from company A 2 weeks after company
    > B has filed for his visa, would the person be in status or out of
    > status for the next 1.5 months, especially since the petition was
    > filed while he was in status? The person is already in the U.S. Please
    > let me know at your earliest so we can figure out what to do for him
    > next.

Technically, the person would be thrown into violation of status when he
leaves the payroll of company A. It's possible that USCIS might send an RFE
requesting a recent paystub right before adjudicating the H-1B, but not that
likely. If the petition is approved, I think the person can go on payroll
of company B. Then at some point the person should make a trip outside the
U.S. and return in a clean entry well before the possibility arises that he
might file Form I-485 and thus need to show continuous maintenance of
temporary status since a valid entry.

The worst case scenario would be that USCIS discovers the violation of
status and denies the request for change of employer (yet still approves the
petition), and the person would have to leave the U.S., get an H-1B visa
stamp if he does not have a valid one, and re-enter using the new H-1B
approval notice.

Jozef

"Topper" <[email protected]> wrote in message
news:[email protected] om...
    > Hello,
    > I have a question re. the H1-B laws that I am posting here for a
    > friend.
    > Assume a person is working for company A and company B files for a
    > transfer of his H1-B visa with a future start date (2 months later).
    > Now, if the person gets laid off from company A 2 weeks after company
    > B has filed for his visa, would the person be in status or out of
    > status for the next 1.5 months, especially since the petition was
    > filed while he was in status? The person is already in the U.S. Please
    > let me know at your earliest so we can figure out what to do for him
    > next.

He is effectively out of status. USCIS used to forgive short periods of
being out of status during H-1B transfers, they are less likely to do so
now.

That said, since the H-1B transfer was filed while still in valid H-1B
status, chances are they won't know about it. In that case the I-797
approval notice will come with a new I-94 card and he'll be ok.

This may still come back to bite him in the future though, when he applies
for a GC for example. At that time CIS will go through his entire
immigration history with a fine toothed comb.

He should switch his H-1B transfer to Premium Processing right away, in
order to minimize the time he is out of status.

Topper

"Jozef" <jozef.*take this out*[email protected]> wrote in message news:<VI7_c.623$5Y6.14@trnddc07>...
    > "Topper" <[email protected]> wrote in message
    > news:[email protected] om...
    > > Hello,
    > >
    > > I have a question re. the H1-B laws that I am posting here for a
    > > friend.
    > >
    > > Assume a person is working for company A and company B files for a
    > > transfer of his H1-B visa with a future start date (2 months later).
    > > Now, if the person gets laid off from company A 2 weeks after company
    > > B has filed for his visa, would the person be in status or out of
    > > status for the next 1.5 months, especially since the petition was
    > > filed while he was in status? The person is already in the U.S. Please
    > > let me know at your earliest so we can figure out what to do for him
    > > next.
    >
    > He is effectively out of status. USCIS used to forgive short periods of
    > being out of status during H-1B transfers, they are less likely to do so
    > now.
    >
    > That said, since the H-1B transfer was filed while still in valid H-1B
    > status, chances are they won't know about it. In that case the I-797
    > approval notice will come with a new I-94 card and he'll be ok.
    >
    > This may still come back to bite him in the future though, when he applies
    > for a GC for example. At that time CIS will go through his entire
    > immigration history with a fine toothed comb.
    >
    > He should switch his H-1B transfer to Premium Processing right away, in
    > order to minimize the time he is out of status.

Sylvia and Josef, thanks for your feedback.

Sylvia: He's already submitted three recent paystubs from companyA
while submitting the transfer petition. Do they normally ask for
additional paystubs even if they have already been submitted with the
petition? CompanyA has agreed not to report his status

One thing I forgot to mention is that he's in the U.S. on the 7th year
extension on the H1-B visa as his labor certification had been filed
by CompanyA 365 days prior to the expiration of the 6 year H1-B visa.
Not sure if this would play a factor in this at all, but just thought
I'd mention it.

Are there any implications/obligations on CompanyB, i.e. is CompanyB
required to put him on payroll?

Someone else told us over the weekend that since the transfer petition
was filed by CompanyB while he was still in status, he would be
considered "in status", atleast while the petition is still pending.
So I wonder if you guys could help in clearing that
confusion/misunderstanding.

Also, if, as you mentioned, he is out of status for the 1.5 months
before he starts his new job with companyB, how would that affect his
I-485 later on? The reason I ask is because another person we know of
(say, Person3) was also out of status for a couple months before he
found a new job early this year. However, when Person3 filed for his
AOS recently, it got approved without any problems. I wonder if
Person3's AOS went through because his AOS was filed as the spouse of
a U.S. Citizen at his local district office? In other words, are they
typically more flexible for spouse sponsored I-485 versus employment
sponsored I-485, as far as being out of status is concerned?

Thanks again in advance for your help.

Regards,
Topper

Sylvia Ottemoeller

"Topper" <[email protected]> wrote in message
news:[email protected] om...

    > "Jozef" <jozef.*take this out*[email protected]> wrote in message
news:<VI7_c.623$5Y6.14@trnddc07>...

    > > "Topper" <[email protected]> wrote in message
    > > news:[email protected] om...

    > > > I have a question re. the H1-B laws that I am posting here for a
    > > > friend.
    > > >
    > > > Assume a person is working for company A and company B files for a
    > > > transfer of his H1-B visa with a future start date (2 months later).
    > > > Now, if the person gets laid off from company A 2 weeks after company
    > > > B has filed for his visa, would the person be in status or out of
    > > > status for the next 1.5 months, especially since the petition was
    > > > filed while he was in status? The person is already in the U.S. Please
    > > > let me know at your earliest so we can figure out what to do for him
    > > > next.
    > >
    > > He is effectively out of status. USCIS used to forgive short periods of
    > > being out of status during H-1B transfers, they are less likely to do so
    > > now.
    > >
    > > That said, since the H-1B transfer was filed while still in valid H-1B
    > > status, chances are they won't know about it. In that case the I-797
    > > approval notice will come with a new I-94 card and he'll be ok.
    > >
    > > This may still come back to bite him in the future though, when he
applies
    > > for a GC for example. At that time CIS will go through his entire
    > > immigration history with a fine toothed comb.
    > >
    > > He should switch his H-1B transfer to Premium Processing right away, in
    > > order to minimize the time he is out of status.
    > Sylvia and Josef, thanks for your feedback.
    > Sylvia: He's already submitted three recent paystubs from companyA
    > while submitting the transfer petition. Do they normally ask for
    > additional paystubs even if they have already been submitted with the
    > petition? CompanyA has agreed not to report his status

They do not normally ask for additional paystubs. There is however no
guarantee that they will not do so.

    > One thing I forgot to mention is that he's in the U.S. on the 7th year
    > extension on the H1-B visa as his labor certification had been filed
    > by CompanyA 365 days prior to the expiration of the 6 year H1-B visa.
    > Not sure if this would play a factor in this at all, but just thought
    > I'd mention it.
    > Are there any implications/obligations on CompanyB, i.e. is CompanyB
    > required to put him on payroll?

Company B cannot put him on payroll until the requested start date, and then
only if the petition has been approved.

    > Someone else told us over the weekend that since the transfer petition
    > was filed by CompanyB while he was still in status, he would be
    > considered "in status", atleast while the petition is still pending.

This would only be true if the requested start date is no later than the day
after the last day of authorized stay in the U.S.

    > So I wonder if you guys could help in clearing that
    > confusion/misunderstanding.
    > Also, if, as you mentioned, he is out of status for the 1.5 months
    > before he starts his new job with companyB, how would that affect his
    > I-485 later on?

Part of eligibility for I-485 filing is continuous maintenance of lawful
status in the U.S.

The reason I ask is because another person we know of
    > (say, Person3) was also out of status for a couple months before he
    > found a new job early this year. However, when Person3 filed for his
    > AOS recently, it got approved without any problems. I wonder if
    > Person3's AOS went through because his AOS was filed as the spouse of
    > a U.S. Citizen at his local district office? In other words, are they
    > typically more flexible for spouse sponsored I-485 versus employment
    > sponsored I-485, as far as being out of status is concerned?

It's not a matter of being "typically more flexible." It is that 245(c)
allows immediate relatives, which includes the spouse of a U.S. citizen, to
be eligible for filing Form I-485 despite having violated status. This is
specifically written into the regulations.

There is actually another provision, 245(k), which allows an
employment-based prospective immigrant to file Form I-485 despite having
violated status. The violation may be no longer than 6 months in duration.

Topper

"Sylvia Ottemoeller" <[email protected]> wrote in message news:<[email protected]>...
Hi Sylvia,

First of all, thanks for your responses. You and Jozef have been a
tremendous help in clarifying a lot of things. I have listed a few
(hopefully
final) clarifications regarding this matter below:

    > > Someone else told us over the weekend that since the transfer petition
    > > was filed by CompanyB while he was still in status, he would be
    > > considered "in status", atleast while the petition is still pending.
    >
    > This would only be true if the requested start date is no later than the day
    > after the last day of authorized stay in the U.S.

By "last day of authorized stay in the U.S." are you referring to
a) the last day of employment with CompanyA or
b) the date stamped on his I-94?
If a), then I figure he would be out of status, but if b) then he
would be in status as his requested start date with companyB is earler
than the last day/date on his I-94.

    >
    > The reason I ask is because another person we know of
    > > (say, Person3) was also out of status for a couple months before he
    > > found a new job early this year. However, when Person3 filed for his
    > > AOS recently, it got approved without any problems. I wonder if
    > > Person3's AOS went through because his AOS was filed as the spouse of
    > > a U.S. Citizen at his local district office? In other words, are they
    > > typically more flexible for spouse sponsored I-485 versus employment
    > > sponsored I-485, as far as being out of status is concerned?
    >
    > It's not a matter of being "typically more flexible." It is that 245(c)
    > allows immediate relatives, which includes the spouse of a U.S. citizen, to
    > be eligible for filing Form I-485 despite having violated status. This is
    > specifically written into the regulations.
    >
    > There is actually another provision, 245(k), which allows an
    > employment-based prospective immigrant to file Form I-485 despite having
    > violated status. The violation may be no longer than 6 months in duration.

OK, thanks for the clarification. Sounds like 245(c) does not have a
limit on the duration of the status violation as does 245(k)? Even so,
in his case the status violation might be roughly 1.5months (if at
all) and he should be able to use 245(k) to get his permanent
residence approved as well (as long as he does not have any other 'red
flags' in his AOS petition, which AFAIK he does not have), correct?

Once again, thanks a lot for your feedback and guidance. You have been
quite helpful.

Regards,
Topper

Sylvia Ottemoeller

"Topper" <[email protected]> wrote in message
news:[email protected] om...

    > "Sylvia Ottemoeller" <[email protected]> wrote in message
news:<[email protected]>...

    > First of all, thanks for your responses. You and Jozef have been a
    > tremendous help in clarifying a lot of things. I have listed a few
    > (hopefully final) clarifications regarding this matter below:

    > > > Someone else told us over the weekend that since the transfer petition
    > > > was filed by CompanyB while he was still in status, he would be
    > > > considered "in status", atleast while the petition is still pending.
    > >
    > > This would only be true if the requested start date is no later than the
day
    > > after the last day of authorized stay in the U.S.
    > By "last day of authorized stay in the U.S." are you referring to
    > a) the last day of employment with CompanyA or

Yes.

    > b) the date stamped on his I-94?

No, unless he continued to work right up until that day.

    > If a), then I figure he would be out of status, but if b) then he
    > would be in status as his requested start date with companyB is earler
    > than the last day/date on his I-94.

    > > The reason I ask is because another person we know of
    > > > (say, Person3) was also out of status for a couple months before he
    > > > found a new job early this year. However, when Person3 filed for his
    > > > AOS recently, it got approved without any problems. I wonder if
    > > > Person3's AOS went through because his AOS was filed as the spouse of
    > > > a U.S. Citizen at his local district office? In other words, are they
    > > > typically more flexible for spouse sponsored I-485 versus employment
    > > > sponsored I-485, as far as being out of status is concerned?
    > >
    > > It's not a matter of being "typically more flexible." It is that 245(c)
    > > allows immediate relatives, which includes the spouse of a U.S. citizen,
to
    > > be eligible for filing Form I-485 despite having violated status. This
is
    > > specifically written into the regulations.
    > >
    > > There is actually another provision, 245(k), which allows an
    > > employment-based prospective immigrant to file Form I-485 despite having
    > > violated status. The violation may be no longer than 6 months in
duration.
    > OK, thanks for the clarification. Sounds like 245(c) does not have a
    > limit on the duration of the status violation as does 245(k)?

Correct.

Even so,
    > in his case the status violation might be roughly 1.5months (if at
    > all) and he should be able to use 245(k) to get his permanent
    > residence approved as well (as long as he does not have any other 'red
    > flags' in his AOS petition, which AFAIK he does not have), correct?

Correct -- if he has a good immigration attorney who puts together all the
paperwork correctly.

    > Once again, thanks a lot for your feedback and guidance. You have been
    > quite helpful.