H1B out of status help - Urgent Urgent!!!

[unidood]

Hi,

Sorry for the long post.

I am writing on behalf of my fiancee. For the past two years, She was working full time and has been on H1 since Oct 2012. She was told by the management that she has been terminated as of today, without any advance notice. The company has not consulted even their attorney before they decided to terminate her (by that I mean once she was terminated she did not receive any information from the attorney). The below were not provided to her yet and neither have been discussed.

1. Her termination letter.
2. Her experience letter
3. Air ticket back to the country
4. Severance (if at all)

A little more detail about the company. The management does not have any idea about how immigration visa works (I guess). They do not have a HR in the company, and the only person who is responsible for correspondence with the company attorney is on leave till the weekend. The management mentioned that they can inform the attorney about the termination once this person is back next week.

Is it even legal to do something like this? Will this affect my fiancee’s status.
The employer has not yet informed the attorney and my fiancee has not been legally notified of her change in visa status. Will she be violating her period of stay in the US if she waits till next week for the company management to contact the attorney.
As per what I have read in online immigration forums, she is already out of status if today was her termination date.

We are getting married in Oct , in India, and she has to travel and has no other alternative. she is not sure on what to do next and what her options are.

1. Another employer has agreed to file for LCA and transfer her H1 in 1-2 days. Should she go ahead with this and will it keep her in status?
2. Go back to India and come back on H4? If so, can she change her status to H1 when she comes back or does she have to wait till April and file for a new H1?

Please advise. Thanks very much.

[kadkhiq81]

H1B out of status help - Urgent Urgent!!!

If she go for H4 stamping, there might be a chance to cancel H1 stamped visa in her passport.

H1 transfer (LCA + petition to get approved in) premium over all would take another 25 to 30 days. As per the rules, you have to apply for a change of status or transfer petition in your last working day. Even if you initiate the petition now, it will take another 25 days to get that approved and anyways you have to go back to India for your marriage in few weeks. It is not advisable to travel when your transfer petition under progress. To me personally, it's better for her to leave the country now and go for h4 stamping (if she does not hold) and come back on h4, Then she can do change of status to H1 by applying transfer petition however I am not sure whether she would be able to transfer petition if Incase her h1 get cancel when she go for h4 stamping.

Raghvi/Kabkaba can provide more details on this.

[Nattybone]

Hello, Unidood and Kidkhaq.

I have one question. Since your fiancee's H1B is already approved and she has been working on it. Can she not leave the country now, and post marriage with Unidood, apply for H4 and enter the US on H4.

As she already has an H1B, she need not wait for the H1B cap till April next year. Can she not enter on H4, and do a Change of Status to H1B after entering US? The downside, she will have to go for H1B stamping the next time she leaves US, but while in the US, this plan can work.

Thoughts? Suggestions?

These are personal opinions. I am not a professional.

Cheers, and wishing you guys luck.

Hi,

Sorry for the long post.

I am writing on behalf of my fiancee. For the past two years, She was working full time and has been on H1 since Oct 2012. She was told by the management that she has been terminated as of today, without any advance notice. The company has not consulted even their attorney before they decided to terminate her (by that I mean once she was terminated she did not receive any information from the attorney). The below were not provided to her yet and neither have been discussed.

1. Her termination letter.
2. Her experience letter
3. Air ticket back to the country
4. Severance (if at all)

A little more detail about the company. The management does not have any idea about how immigration visa works (I guess). They do not have a HR in the company, and the only person who is responsible for correspondence with the company attorney is on leave till the weekend. The management mentioned that they can inform the attorney about the termination once this person is back next week.

Is it even legal to do something like this? Will this affect my fiancee’s status.
The employer has not yet informed the attorney and my fiancee has not been legally notified of her change in visa status. Will she be violating her period of stay in the US if she waits till next week for the company management to contact the attorney.
As per what I have read in online immigration forums, she is already out of status if today was her termination date.

We are getting married in Oct , in India, and she has to travel and has no other alternative. she is not sure on what to do next and what her options are.

1. Another employer has agreed to file for LCA and transfer her H1 in 1-2 days. Should she go ahead with this and will it keep her in status?
2. Go back to India and come back on H4? If so, can she change her status to H1 when she comes back or does she have to wait till April and file for a new H1?

Please advise. Thanks very much.

[unidood]

Thanks Kidkhaq & Nattybone.

We might be going with option 1 i.e transferring the H1 immediately. But before that I have one more question.

If her company revokes her H1 with USCIS, and if she comes back on H4 to US, can she convert from H4 to H1 without the cap limit? Can she do the COS anytime after she comes back? (i.e not in April but say in Novemeber/December).

Nattybone,

I was told by some other friends that she will have to restart her H1 process if she comes back on H4, including the CAP limits and time (in April only). Can you please clarify?

[kadkhiq81]

H1B out of status help - Urgent Urgent!!!

She doesn't have to go through CAP as she has not completed her 6 years. It doesn't matter to you if the company A revoke the petition or not. As long as you can initiate the transfer petition before last working day, You are all good.

But remember you have limited time to get the petition approved before you leave the country for your marriage. You cannot travel when the petition under progress.

[unidood]

kadkhiq81,

She is already done with her last working day yesterday. I was talking about the CAP if she comes back from India with a H4 and applies for a new H1.

Thank you

She doesn't have to go through CAP as she has not completed her 6 years. It doesn't matter to you if the company A revoke the petition or not. As long as you can initiate the transfer petition before last working day, You are all good.

But remember you have limited time to get the petition approved before you leave the country for your marriage. You cannot travel when the petition under progress.

[Nattybone]

Hello, Unidood and Kadkhiq.

What my understanding is, the visa (H1B) belongs to you. Once H1B is issued, even if Company ABC revokes it, it can be revived. What i want to clarify is the sponsoring Company can revoke but it cannot prevent someone from sponsoring it again.

Secondly, once H1B is issued - you are counted against the Cap for that year. Unless you have used up your 6 years, you do not need to go for the Cap again. Even if you switch status to H4 and enter the country on H4. You are allowed to again switch status to H1B WITHOUT being subject to the Cap.

E.g.: My friend had an H1B in 2008, he left US in 2009. In 2011, he entered on B2 and filed for Change of Status for H1B. He was NOT subject to Cap. If B2 to H1B Change of Status is allowed, i see no reason why H4 to H1B Change of Status should not have a provision in the system.

This is my understanding. I am not a Immigration Attorney.

Hope this helps.

Cheers,

Thanks Kidkhaq & Nattybone.

We might be going with option 1 i.e transferring the H1 immediately. But before that I have one more question.

If her company revokes her H1 with USCIS, and if she comes back on H4 to US, can she convert from H4 to H1 without the cap limit? Can she do the COS anytime after she comes back? (i.e not in April but say in Novemeber/December).

Nattybone,

I was told by some other friends that she will have to restart her H1 process if she comes back on H4, including the CAP limits and time (in April only). Can you please clarify?

[unidood]

Thanks a lot for your help Nattybone and Kadkhiq. After some deliberation and your advice we have decided to go with option 2 (go to India and comeback on H4 and do a COS to H1). Thanks again

Hello, Unidood and Kadkhiq.

What my understanding is, the visa (H1B) belongs to you. Once H1B is issued, even if Company ABC revokes it, it can be revived. What i want to clarify is the sponsoring Company can revoke but it cannot prevent someone from sponsoring it again.

Secondly, once H1B is issued - you are counted against the Cap for that year. Unless you have used up your 6 years, you do not need to go for the Cap again. Even if you switch status to H4 and enter the country on H4. You are allowed to again switch status to H1B WITHOUT being subject to the Cap.

E.g.: My friend had an H1B in 2008, he left US in 2009. In 2011, he entered on B2 and filed for Change of Status for H1B. He was NOT subject to Cap. If B2 to H1B Change of Status is allowed, i see no reason why H4 to H1B Change of Status should not have a provision in the system.

This is my understanding. I am not a Immigration Attorney.

Hope this helps.

Cheers,

[kadkhiq81]

H1B out of status help - Urgent Urgent!!!

Does she hold h4 already or Would she go for h4 stamping in India? If yes, there might be a chance to cancel her h1 visa when she appear for the interview. If that happens, I am not sure whether you can still do a change of status to
H1 from h4.

Raghvi, can you please direct him accordingly

[kadkhiq81]

H1B out of status help - Urgent Urgent!!!

Raghvi/Kabkaba,

Any pointers on this topic would be appreciated!!

[Nattybone]

Does this thread not answer?

http://www.immihelp.com/forum/showthread.php/114685-Has-approved-H1B-petition-travelling-to-US-on-H4-Can-I-transfer-to-H1-once-in-USA

Cheers,

Does she hold h4 already or Would she go for h4 stamping in India? If yes, there might be a chance to cancel her h1 visa when she appear for the interview. If that happens, I am not sure whether you can still do a change of status to
H1 from h4.

Raghvi, can you please direct him accordingly

[kadkhiq81]

H1B out of status help - Urgent Urgent!!!

No..it does not. That thread speaks about the person who have not got H1 visa stamped yet and traveling to the US using H4 visa. She might go for h4 visa if she did not go before and would travel on her H4 to the US. However in this case, she is already in the US, going back to their Home country and returning on h4 visa. If she does not have h4 stamped already and when she go for h4 interview, there might be a chance of canceling her h1 visa on the passport. If it happens, I am not sure would this impact in anyways once they try to do COS from h4 to H1 or not. I might be wrong in my understanding though.

[Nattybone]

Kadkhiq,

On my own passport, H1B stamp was cancelled, but when i entered on B2, i was allowed to file for a Change of Status to H1B. Cancellation on the Passport of H1B means little because in the system you have been given H1B once.

In the light of this, this gentleman's wife should be allowed to do COS from H4 to H1 irrespective of cancellation of H1B on the passport unless there is something specifically against H4 doing a COS (which i doubt to be the case).

Hope this helps.

Cheers,

Again, these are personal views. I am no Immigration professional

No..it does not. That thread speaks about the person who have not got H1 visa stamped yet and traveling to the US using H4 visa. She might go for h4 visa if she did not go before and would travel on her H4 to the US. However in this case, she is already in the US, going back to their Home country and returning on h4 visa. If she does not have h4 stamped already and when she go for h4 interview, there might be a chance of canceling her h1 visa on the passport. If it happens, I am not sure would this impact in anyways once they try to do COS from h4 to H1 or not. I might be wrong in my understanding though.