H1B - Transfer Requirement - ADVICE
 

I have heard lot about you. I would like to ask one questions please give the answer to this earliest you can.

I was working on h1b from my previous employer and was on payroll untill 6/15/2002. Then after i got laid off, but still they told
they will not re-voke my H1B for another 3 months i.e. untill 9/15/2002 so that i can look for my new job.

Now i have got an offer from another company and they are asking for recent paystubs. I have furnished all the related documents to the lawyer of this new company and told them that i have pay stub untill 6/15/2002 only and gave those also.

They (new employer attonery) are requesting me to provide me any additional paystub for the month of july which i d't have. I stay in california.

The question is weather my new visa will it get approved from the INS once its submitted from the attorney of the new employer from whom i got the offer OR they will request for any recent paystub? What are the other options i have to make it go?

Can you tell me what i need to do? What is the % of gettting not approved for my new h1b transfer.

Thanks and Regards
Manish.

Re: H1B - Transfer Requirement - ADVICE
 

psmanish wrote:

    > I have heard lot about you. I would like to ask one questions please give the
    > answer to this earliest you can.
    >
    > I was working on h1b from my previous employer and was on payroll untill
    > 6/15/2002. Then after i got laid off, but still they told they will not re-voke my
    > H1B for another 3 months i.e. untill 9/15/2002 so that i can look for my
    > new job.
    >
    > Now i have got an offer from another company and they are asking for recent
    > paystubs. I have furnished all the related documents to the lawyer of this new
    > company and told them that i have pay stub untill
    > 6/15/2002 only and gave those also.
    >
    > They (new employer attonery ) are requesting me to provide me any additional
    > paystub for the month of july which i d't have. I am put westcoast.
    >
    > The new employer attonery are just doubting weather the INS might reqeust for
    > recent paystub for the month of july else it might be difficult to get approved?

It's true. There is a risk that INS will not approve the extension part of the H-1B
petition if there are no recent paystubs. However, in that case, INS can still
approve the petition itself, and you can leave the U.S. and return in valid H-1B
status, showing the new H-1B approval notice at the port of entry.

    > Can you tell me what i need to do? What is the % of gettting not approved for my
    > new h1b transfer.

Ask the attorney and the employer to file the petition anyway, and see what happens.
If INS won't approve the petition without the paystubs, then you and the employer can
go to "plan B."

Some employers use this rule of thumb: if the person has been off the payroll of the
previous employer for less than 60 days, the employer assumes that H-1B portability
is going to work, and puts the person on their payroll while the H-1B petition is
pending. If INS has a problem with the paystubs, the employer puts the person off the
payroll until the H-1B petition has been approved, the person has left the U.S., and
returned in valid H-1B status.

If the person has been off the payroll more than 60 days, the H-1B petition should
probably be filed free-floating with premium processing, and you should count on
leaving the U.S. and re-entering to get into valid status.

Re: H1B - Transfer Requirement - ADVICE
 

Hi Sylvia Ottemoel,


Thanks for the Reply but few things are i am not understanding could you please clarify me on these :


]
>It's true. There is a risk that INS will not approve the extension >part of the H-1B petition if there are no recent paystubs. >However, in that case, INS can still approve the petition itself, >and you can leave the U.S. and return in valid H-1B status, >showing the new H-1B approval notice at the port of entry.]

Well once the INS approves my petition itself, why i have to leave u.s. and return with the new valid h1-b. Once its approved d't mean that its valid. Also adding to this my previous h1b is still valid untill 2004 of october 31st and also its not revoked untill 3 months after my lay off just for courtsey.

]
>Ask the attorney and the employer to file the petition anyway, >and see what happens. If INS won't approve the petition >without the paystubs, then you and the employer can
>go to "plan B."
]

Yes my new attorney and employer are going forward to file petition for me. What is that the plan B you are referring to please let me know.


>If the person has been off the payroll more than 60 days, the
>H-1B petition should probably be filed free-floating with premium >processing, and you should count on leaving the U.S. and
>re-entering to get into valid status.


But as for me, i am still under 60 days grace period. Still i need to count on leaving the U.S and re-enter with new h1b. If so how soon or lately i have to do that process.


Please reply to me at the earliest.

Thanks

Re: H1B - Transfer Requirement - ADVICE
 

psmanish wrote:

    > Thanks for the Reply but few things are i am not understanding could you please
    > clarify me on these :

    >>It's true. There is a risk that INS will not approve the extension
    >>>part of the H-1B petition if there are no recent paystubs. >However,
    >>in that case, INS can still approve the petition itself, >and you can leave the
    >>U.S. and return in valid H-1B status, >showing the new H-1B approval notice at the
    >>port of entry.]

    > Well once the INS approves my petition itself, why i have to leave u.s. and return
    > with the new valid h1-b.

There are two different actions that the employer will ask INS to do:

1. approve the petition to classify you as H-1B
2. approve the request to extend your status at the new employer

If INS does 1. and refuses to do 2., then the position is classified for H-1B, but
you do not **hold** H-1B status, and thus you cannot work in the position.

Once its approved d't mean that its
    > valid.

The petition is valid. But your status is not valid if INS refuses to extend
your status.

Also adding to this my previous h1b is still valid untill 2004 of
    > october 31st and also its not revoked untill 3 months after my lay off just for
    > courtsey.

None of that matters. The moment you went off the payroll, you violated your status.
If INS approves 2. above, it is a kind of forgiveness of your violation.

    >>Ask the attorney and the employer to file the petition anyway, >and see what
    >>happens. If INS won't approve the petition >without the paystubs, then you and the
    >>employer can go to "plan B."

    > Yes my new attorney and employer are going forward to file petition for
    > me. What is that the plan B you are referring to please let me know.

Plan B is your leaving the U.S. and re-entering in the H-1B status of the new
employer.

    >>If the person has been off the payroll more than 60 days, the H-1B petition should
    >>probably be filed free-floating with premium
    >>>processing, and you should count on leaving the U.S. and re-entering
    >>to get into valid status.

    > But as for me, i am still under 60 days grace period.

It is not a grace period. Technically, INS can refuse .2 above for one day off
the payroll.

Still i need to
    > count on leaving the U.S and re-enter with new h1b. If so how soon or lately i have
    > to do that process.

This is what will probably happen. The petition will be sent to INS. You will go on
the payroll using "H-1B portability." You will keep on working until INS considers
the petition. This could take 3 or 4 months, depending on where the employer files
the petition.

If INS approves 1. but refuses 2., you have to go off the payroll. Then you leave the
U.S., and re-enter in H-1B status. Then you can go on the payroll again.

Re: H1B - Transfer Requirement - ADVICE
 

Sylvia Ottemoeller <[email protected]> wrote in message
news:<[email protected]>...
    > psmanish wrote:
    > > Thanks for the Reply but few things are i am not understanding could you please
    > > clarify me on these :
    > >>It's true. There is a risk that INS will not approve the extension
    > >>>part of the H-1B petition if there are no recent paystubs. >However,
    > >>in that case, INS can still approve the petition itself, >and you can leave the
    > >>U.S. and return in valid H-1B status, >showing the new H-1B approval notice at
    > >>the port of entry.]
    > > Well once the INS approves my petition itself, why i have to leave u.s. and
    > > return with the new valid h1-b.
    > There are two different actions that the employer will ask INS to do:
    > 1. approve the petition to classify you as H-1B
    > 2. approve the request to extend your status at the new employer
    > If INS does 1. and refuses to do 2., then the position is classified for H-1B, but
    > you do not **hold** H-1B status, and thus you cannot work in the position.
    > Once its approved d't mean that its
    > > valid.
    > The petition is valid. But your status is not valid if INS refuses to extend
    > your status.
    > Also adding to this my previous h1b is still valid untill 2004 of
    > > october 31st and also its not revoked untill 3 months after my lay off just for
    > > courtsey.
    > None of that matters. The moment you went off the payroll, you violated your
    > status. If INS approves 2. above, it is a kind of forgiveness of your violation.
    > >>Ask the attorney and the employer to file the petition anyway, >and see what
    > >>happens. If INS won't approve the petition >without the paystubs, then you and
    > >>the employer can go to "plan B."
    > > Yes my new attorney and employer are going forward to file petition for
    > > me. What is that the plan B you are referring to please let me know.
    > Plan B is your leaving the U.S. and re-entering in the H-1B status of the new
    > employer.
    > >>If the person has been off the payroll more than 60 days, the H-1B petition
    > >>should probably be filed free-floating with premium
    > >>>processing, and you should count on leaving the U.S. and re-entering
    > >>to get into valid status.
    > > But as for me, i am still under 60 days grace period.
    > It is not a grace period. Technically, INS can refuse .2 above for one day off the
    > payroll.
    > Still i need to
    > > count on leaving the U.S and re-enter with new h1b. If so how soon or lately i
    > > have to do that process.
    > This is what will probably happen. The petition will be sent to INS. You will go
    > on the payroll using "H-1B portability." You will keep on working until INS
    > considers the petition. This could take 3 or 4 months, depending on where the
    > employer files the petition.
    > If INS approves 1. but refuses 2., you have to go off the payroll. Then you leave
    > the U.S., and re-enter in H-1B status. Then you can go on the payroll again.


I have a related question. I was on an unpaid leave of absence for 3 months (May to
July) and was in the US during this time. I have rejoined my employer this month
(August). I have an offer from another company and may join them starting September
15. I may not be able to present 3 paystubs (in continuity)if I opt to join the the
new company. Do you think a letter from my present employer stating that I was on an
unpaid leave of absence will be acceptable to INS.

Thanks.