Laid off on H-1B - filed COS to H4 (still pending) - getting back on H-1B

[thegoat]

I've been on H-1B since October 2012. I was laid off and my last date of employment with my former employer was May 1, 2014. Starting May 2nd, I would have gone out-of-status since I was no longer employed. So, to continue to be in-status, I applied for a change of status from H-1B to H-4 using the form I-539 (my wife is employed and holds an H-1B visa). The I-539 was received by USCIS on May 2nd, 2014 (as stated in the receipt), and the status says "Initial Review" as of today. My latest I-94 (obtained at POE) is valid until Oct 2015.

I have found a job now and the attorneys are planning to file for a new H-1B petition. Now my question is that whether they should opt for consular processing or not. My understanding is that if they file the petition through premium processing and I get an approved I-797 (with its own I-94) within 15 days, can I simply cancel my COS request and then commence working for my new employer? Is it even possible to cancel my already filed COS at any time? In what situation should consular processing be opted for? Since I have a pending COS application, I am still considered to be "in status", right?

Based on my rudimentary understanding, here is what I think should be done in my case:

1. Apply for a new H-1B through premium processing.
2. Once the approved I-797 is received (which also contains a new I-94 attached to it), immediately cancel the COS from H-1B to H4 application to prevent myself from switching to H4 at a later stage.
3. Start working for new employer.
4. I have a valid visa stamp (from my former employer) until Oct 2015, so I can continue working and traveling abroad until then by using this stamp and new I-797.
5. Once I'm close to the Oct 2015 deadline, I should get a new visa stamp with the name of my current employer.

Please let me know if my understanding is correct.

Thanks!

[raghvi]

I've been on H-1B since October 2012. I was laid off and my last date of employment with my former employer was May 1, 2014. Starting May 2nd, I would have gone out-of-status since I was no longer employed. So, to continue to be in-status, I applied for a change of status from H-1B to H-4 using the form I-539 (my wife is employed and holds an H-1B visa). The I-539 was received by USCIS on May 2nd, 2014 (as stated in the receipt), and the status says "Initial Review" as of today. My latest I-94 (obtained at POE) is valid until Oct 2015.

I have found a job now and the attorneys are planning to file for a new H-1B petition. Now my question is that whether they should opt for consular processing or not. My understanding is that if they file the petition through premium processing and I get an approved I-797 (with its own I-94) within 15 days, can I simply cancel my COS request and then commence working for my new employer? Is it even possible to cancel my already filed COS at any time? In what situation should consular processing be opted for? Since I have a pending COS application, I am still considered to be "in status", right?

Based on my rudimentary understanding, here is what I think should be done in my case:

1. Apply for a new H-1B through premium processing.
2. Once the approved I-797 is received (which also contains a new I-94 attached to it), immediately cancel the COS from H-1B to H4 application to prevent myself from switching to H4 at a later stage.
3. Start working for new employer.
4. I have a valid visa stamp (from my former employer) until Oct 2015, so I can continue working and traveling abroad until then by using this stamp and new I-797.
5. Once I'm close to the Oct 2015 deadline, I should get a new visa stamp with the name of my current employer.

Please let me know if my understanding is correct.

Thanks!

1. Fine.
2. This is where USCIS would first ask if you are currently in status. You are not in H1 status currently as you dont have a valid paystub to support that, you are not in H4 as you dont have a corresponding I-94 for that. So unless you first get H4 approved, you would not be able to move back to H1. The only other way to avoid waiting for H4 approval but still move to H1 is to leave US and return on the new employer's approved H1 petition.


This is my opinion not legal advice.

[thegoat]

Thank you for replying, raghvi!

2. This is where USCIS would first ask if you are currently in status.

1. Can you confirm that when they evaluate my application and send an approved I-797 to me, it will not have an I-94 attached?
2. Can't I use my most recent I-94 (obtained at the POE and valid until Oct 2015) to begin working for my new employer?
3. If my approved I-797 doesn't have its own I-94, and I cannot use my most recent I-94 to start working for the new employer, I will be forced to travel abroad for consular processing and get a new I-94. Is this true?

You are not in H1 status currently as you dont have a valid paystub to support that, you are not in H4 as you dont have a corresponding I-94 for that. So unless you first get H4 approved, you would not be able to move back to H1. The only other way to avoid waiting for H4 approval but still move to H1 is to leave US and return on the new employer's approved H1 petition.

Getting an approved H-4 will take a lot of time; a few months perhaps? So waiting for an approved H-4 and then filing a new H-1B petition is not really an option. But since I have a case pending, am I not considered to be "in status"? Yes, I agree that I'm neither in H-1B nor H-4 status, but I was under the impression that being in this "transition" phase will give me the liberty to maintain status, and at the same time, switch to a new status (in my case, back to H-1B) as well.

Also, once I return to the US with a new H-1B stamp and I-797 from new employer, what happens to my COS to H-4 application? Can it still be approved while I'm away, or after I get back to the US? Do I explicitly need to cancel the COS application, or will it get nullified once I'm done with getting my H-1B visa stamped (or at some other stage).

[raghvi]

Thank you for replying, raghvi!

1. Can you confirm that when they evaluate my application and send an approved I-797 to me, it will not have an I-94 attached?
2. Can't I use my most recent I-94 (obtained at the POE and valid until Oct 2015) to begin working for my new employer?
3. If my approved I-797 doesn't have its own I-94, and I cannot use my most recent I-94 to start working for the new employer, I will be forced to travel abroad for consular processing and get a new I-94. Is this true?

Getting an approved H-4 will take a lot of time; a few months perhaps? So waiting for an approved H-4 and then filing a new H-1B petition is not really an option. But since I have a case pending, am I not considered to be "in status"? Yes, I agree that I'm neither in H-1B nor H-4 status, but I was under the impression that being in this "transition" phase will give me the liberty to maintain status, and at the same time, switch to a new status (in my case, back to H-1B) as well.

Also, once I return to the US with a new H-1B stamp and I-797 from new employer, what happens to my COS to H-4 application? Can it still be approved while I'm away, or after I get back to the US? Do I explicitly need to cancel the COS application, or will it get nullified once I'm done with getting my H-1B visa stamped (or at some other stage).

1. I can only suggest as to how I interpret the laws and as far as I understand most likely you would not get a new I-94 along with the I797. You may get an RFE to prove your valid status.
2. Visa, Status, Petition, I-94 are different things. Even if you have a I-94 not having pay stubs makes you out of status.
3. Yes.
4. Pending COS applications doesnt allow you to have a valid status. There is no transition or grace period. The idea of seeking initial H1 approval by an employer for an employee is that they have defined work for you for the duration of the period sought and its for a skill set not readily available in the US market. If they dont have work then they should send you back. Did you not ask the employer for return ticket back home?
5. A COS is deemed abandoned if one travels outside US while it is pending. It is possible that it gets approved after you return but you can always say, as and when it comes up in future, is that you traveled outside US hence it should have been abandoned.

This is my opinion not legal advice.

[thegoat]

4. Pending COS applications doesnt allow you to have a valid status. There is no transition or grace period. The idea of seeking initial H1 approval by an employer for an employee is that they have defined work for you for the duration of the period sought and its for a skill set not readily available in the US market. If they dont have work then they should send you back. Did you not ask the employer for return ticket back home?

Why should I ask for a return ticket home? My first step after being laid off is to apply for a COS to H-4 and simultaneously look for jobs. It's unfortunate in my case that my former employer did not give me any prior notice nor buffer to look for jobs and transfer my H-1B when I find one. If that were the case, I wouldn't have to go through all this turmoil to start working for my new employer. In fact, if I would have flown back home the very next day after being terminated, my chances of getting another job in the US would have been severely diminished (due to difficulty in scheduling on-site interviews and all that). I consider myself lucky that my wife has her H-1B and so I can make it seem like I'm attempting to continue to maintain legal status in spite of being laid off by applying for a COS.

Anyway, my new employer has agreed to opt for premium processing. So that'll help accelerate the process to some extent.

[raghvi]

Why should I ask for a return ticket home? My first step after being laid off is to apply for a COS to H-4 and simultaneously look for jobs. It's unfortunate in my case that my former employer did not give me any prior notice nor buffer to look for jobs and transfer my H-1B when I find one. If that were the case, I wouldn't have to go through all this turmoil to start working for my new employer. In fact, if I would have flown back home the very next day after being terminated, my chances of getting another job in the US would have been severely diminished (due to difficulty in scheduling on-site interviews and all that). I consider myself lucky that my wife has her H-1B and so I can make it seem like I'm attempting to continue to maintain legal status in spite of being laid off by applying for a COS.

Anyway, my new employer has agreed to opt for premium processing. So that'll help accelerate the process to some extent.

There are laws to safeguard employees. And this particular law is one of them. The law says that the employer must provide the return ticket in case they can no longer provide work for you on H1. This probably would have bought you time and forced employer to give you a decent notice period. At least this way the employers know that they cant treat H1 employees as use and throw.

This is my opinion not legal advice.

[thegoat]

My new H-1B petition was filed via premium processing. The USCIS web page states that a decision has been made:

On July 14, 2014, this I129 PETITION FOR A NONIMMIGRANT WORKER was approved and we sent you an e-mail notice.

The next step for me is to travel to Mexico with my existing H-1B stamp (from my old employer and valid until Oct 2015) and the new approved I-797 (from my new employer). Since I have a valid US visa, I can travel to Mexico without the need for a Mexican visa:

A foreign who has any of the following documents shall not require Mexican visa:
b) Valid visa from the United States of America;

Source: http://www.inm.gob.mx/index.php/page...s_Visa/en.html

Upon my return to the US, I can simply use my existing H-1B stamp and the new I-797 to re-enter the country, get a new I-94, and start working for my new employer.

Guys, do you see any issues with this? Has anyone in my situation faced problems when re-entering the US?

BTW, my H-4 application is still in "Initial Review". I don't know if I should be doing anything about it, if at all.

[thegoat]

Bouncing thread for responses. Thanks!

[Iamforgc]

Bouncing thread for responses. Thanks!

I remember one of my friend did same and not seen any issues at Poe.....it's all depend on case to case....

By the way. Your I-797 approved with out I-94? Please confirm....

...

I am on same situation now, got a project with previous employer but still h1 to h4 cos pending. But earlier h1b valid until July 2015 so can I start work with the previous employer again since he not cancelled my h1.

What are the options I have.