Immigration H1b

Question:

I worked for the company on H1B till December last year. Than they terminated my contract for whatever reason. I am pretty sure they didn't cancel H1B visa so I am ok now to do change employer process.

In the unlikely case they did cancel my visa: * Can I still do change employer now after several months passed? * If I apply for brand new H1B visa and it gets approved do I still need to leave US to get new I-94? Mine from previous H1B is still valid till 2004. * Is it any likelyhood that INS won't approve new H1B because I didn't leave? I think it's very unlikely since many times people don't surrender their I-94 departure records and immigration is never sure if you actually left. Am I correct here?

Answer:

If you were laid off last December and found a new employer now , you have been here for 180 days which counts as unlawful presence i believe. If you do submit your paperwork to the INS or BCIS they will request you send along your most recent paystubs, i think for the last 60 days, in this case your last pay stub would be 6 months ago? So the actual I-94 isnt going to help your case . I think in your case you have been out of status for 6 months, if they would approve your h1b transfer, you would probably have to leave back to your home country and get it stamped, whereby your unlawful presence may come into play seeing as you been here for that about of time after being laid off. Unlawful presence counts towards a 3 year ban i think. Anyways i may be wrong on some of my comments, i am sure others will correct any mistakes i may have made on this analysis.

I agree with him being out of status, however on my h1b transfer they never asked for paystubs!!!

How long ago was this? Were you laid off or did you find another position and transfer immediatly while being still employed?

I found a position while I was still working and they didnt even have layoff plans, but even if I was, how would the INS know this? I am not implying they dont know, im just asking how they find out, I have zero knowledge about it, all I know is that my trasfer was very smooth.

I read previous responses and realize that it's impossible to know for sure that previous company canceled H1B. We separated not 100% gracefully.

So I feel it's safer to just apply for the brand new H1B. Therefore my question is: Once it's approved (which I am pretty sure of) SHOULD I need to leave country to get stamp? My I-94 is valid till 2004. And I have the opportunity to go for this not to my home country but to a very liberal EU country. Have links to it. Does it make sense?

What are potential pitfalls/problems with applying for brand new H1 in my case? Any recommendations? Experiences?

I am sure many people got laid off, terminated and so on in recent years. And they are able to somehow straighten this out now.

I will have lawer of course but anyway, any thoughts?

You almost certainly have to leave the U.S., get an H-1B visa stamp if you don't already have one, and re-enter, in order to get yourself into H-1B status.

The H-1B petition may contain two requests: one is to classify you and the job as H-1B; the other is to ask that your status be extended and a "change of employer" granted.

Because of your long time in violation of status, the second request, if made, will probably be refused. However, the request for H-1B classification will probably be approved.

Your attorney may recommend that the prospective employer simply not make the second request, because it is so likely to be refused.

My I-94 is valid till 2004. And I have the

It's probably O.K. You can try, and if it doesn't work, go to your home country.

The employer can ask, but the request is likely to be refused. BCIS will probably ask for paystubs to check whether you maintained H-1B status, and if you don't present those, BCIS will refuse the request.

If your employer asks for an "extension and change of employer" and BCIS approves, then a new supplementary I-94 would be printed on the bottom of the H-1B approval notice, and you wouldn't have to leave the U.S.

Mine from previous H1B is still valid till 2004.

You can't use that one as the basis for employment.

Also, I don't believe you will be subject to the 3 year bar, because the bar is based on your staying in the U.S. for 180 days after an expiration date on an I-94 (and yours ends in 2004, so you don't have to worry there), or 180 days after the BCIS or a judge found you to have violated status. The previous employer's notifying BCIS that you left is not an event which starts the 180 days counting.

Is there any clear statement in law or regulations about this? A respected attorney told me recently that he interprets a receipt from the BCIS of notification of H-1B petition withdrawal as an event which starts the 'illegally present for purpose of bans' clock. His view is that the 180 day clock is started by any indication from the BCIS that they now know that the individual is out of status.