Doc in trouble! H-1 job might be lost

[mushtaqashraf]

Hello everybody!

My name is Mushtaq & am a physician by profession from Pakistan. I got a residency (training cum job)

and the hospital sponsored the H-1 visa. I interviewed at the US embassy Islamabad on 12th May, 2009 &

since, am waiting for my passport as its stuck in admin processing. It seems the employer may not keep my

position beyond 15th August. A number of queries worry me:

1. If I lose the position, what happens to the H-1 visa (which was approved yet is in admin processing). Can

I travel on it once I get it even if I lose the job, that is , post Aug 15th. The purpose of travel would be to find a new job, which indeed would be next to impossible as residencies start every year from July. Would I encounter any problem at the port of entry?
2. I have a B1/B2 visa valid till 2012. What happens to my B1/B2 visa if because of the job loss I lose the

H-1 also. I will surely need it if I want to apply again this year for finding a residency because we are supposed to apply in September and then interview invites would come in November and beyond. Getting a new B1/B2 is a mess I seriously want to avoid.

I am at the peak of frustration and desperately seek advice as to how should I proceed from now on. I would be obliged and would appreciate it.

Regards!

[txh1b]

1. It would be illegal to enter on a H1b when you do not have a job. Even if you find one, it will be impossible to transfer the H1b also if you enter on H1b and do not have a paycheck. It is also fraud to do so.
2. Your B1/B2 remains valid unless there is something wrong with your background and State Dept chooses to revoke the visa. You can enter on B1/B2 and look for a job, travel out and return on H1b again when you have a sponsor that can process the H1b or have a COS filed by the sponsor.

[mushtaqashraf]

Thank you very much!

I am really obliged txh1b for your prompt reply!! You guys are doing a great service and I appreciate it. And I apologize for my belated reply. There are a few more questions:

1) If the employer cancels the contract does it mean that the H-1 will be automatically revoked by USCIS or they have to been informed to do that. What is the process for that and how much time would it take.

2) I am continuously in touch with the hospital and they are really nice people. I am trying to convince them whatever is happening is by no fault of mine and can they offer me the same position next year. If they do, will the current H-1 petition be of any use (of course if they don't get it revoked)? Its valid for 1 year till June 2010.

3) I asked about the B1/B2 because I had heard that once they stamp the H-1 they simultaneously cancel the B1/B2. If however this does not happen and both H-1 and B1/B2 are there on the passport (say if I get it on Aug 18th, that is, post Aug 15th) then shall I encounter any problem at the port of entry (I would most likely enter somewhere in late October to interview) if I tell the CBP that I am entering on B1/B2. Or should I request the embassy to send my passport now? By the way, a week back I confirmed it with Islamabad embassy that the B1/B2 is still valid (the officer checked it physically and said there is no cancellation stamp) and also the visa officer did not inform me about canceling the B1/B2.

4) Keeping in mind what has happened to me this year should I go for an H-1 next year or opt a J-1. All my friends who were sponsored J-1 are in the US doing their residency and those who came here to get visa stamped 7 out of 9 (cases in my knowledge) are stuck. Feels as if issuing H-1s is being discouraged.

Thanking you once again and hoping to hear from you soon!

Regards!

[txh1b]

1. Irrespective of USCIS being notified or not, the day you are terminated is the last day you are considered to be on H1b status as per the law. Technically, you can pull through within 1 week of your last paycheck with a H1b transfer. USCIS revoke by employer could take anywhere between 1-2 months however, the effective date is the last day of service.
2. If they do not revoke the H1b, you can enter on the same visa and same petition. If they do so, you can still use the same visa but need a new petition filed by the employer and approved before you can travel next year.
3. B1/B2 and H1b stamps can co-exist at the same time on the passport and be used at POE based on what the alien is planning to do on the visit.
4. Not anything related to H1b. It is more likely security check. You could face the same issue even with a J1. It is your choice if you want to get on J1, serve in the rural area for whatever period to get a waiver from J1 later on after the residency.

Good Luck!

[mushtaqashraf]

What is the right path!!!

Good morning txh1b,

Thanks once again. I am sorry for bothering so much but the problem is I need your help to be clear as to how should I proceed, so hope that you will overlook the botheration!

1) If supposedly they don't revoke the petition, can I enter end of May or early June next year on the same visa & petition or is it mandatory to leave for US as soon as one gets the H-1 visa stamp? Because even if they are willing to give me the job, they can't do it this year as it is getting increasingly difficult for them to manage and they will find a person to fill the spot. However, they will need new people next year as well (as residency is a cyclic process starting every year in July) and can fit me in from July next year. I am sure they would not like to let the money for this petition go down the drain and plus one of their spots will also be filled.

2) I have not joined the hospital yet and so have no pay stubs. And this petition is valid till June 30, 2010. So if next year I enter US, for example at end of May, to join the hospital on the same petition, it will be about to expire and so a re-validation/ extension (whatever its called) will be needed. Will there be any problem at that time? And by what date do you suggest I should enter?

3) You mentioned "If they do so, you can still use the same visa but need a new petition filed by the employer and approved before you can travel next year." I did not understand this. Please correct me if I am wrong. It means if the hospital even gets the H-1 revoked by USCIS this year, it can induct me next year by just filing a new petition with USCIS without me going to the embassy again for the stamping (for the new I-797) as the current visa would be valid at least till June 30, 2010 and I can travel on it using the new I-797 that I may receive next year.

4) Do you think that there might be any complication when the hospital attorney again files the petition next year for the same person whose petition was revoked very recently by the same employer.

And finally, can you advise me what plan should I present to them when I talk to them about working this

thing out.

Thanks and have a good day!

[txh1b]

1. yes, you can provided the petition remains valid and the job too.
2. You need a new offer letter from the hospital giving you a new start date to present at POE. Once you enter, the hospital can extend the petition by filing for a H1b extension next year.
3. You got it all right.
4. Not an issue.

As this cycle for residency seems like a no-go unless you get your visa soon, you could ask the hospital to hold the petition as is, file for an extension next year as soon as you enter. You can enter in July and file the extension immediately.

As an alternative, if you can find another hospital from the second list or third list of selection whose residency starts late (I doubt it) as the application process is long and starts a year in advance, if they have a vacant seat by any chance similar to your case, they could premium process the H1b for you, get you the petition and you can enter using the already obtained visa for Hospital A along with petition for Hospital B this year.

[mushtaqashraf]

Thanks!!!

You said I can enter in July next year so that the hospital can file an extension. But the petition is valid till June 30, 2010 and most likely this shall be the validity period for the visa stamp as well. So I guess I should enter in advance of this date. But how early? And as long as the verdict regarding the extension petition is pending will my status be legal in US?

You are right. For the residency season that starts in July 2010 the applications will be invited from Sep 2009 and the candidate selections by the hospitals will be announced in March 2010. Very rarely will a spot open up in between Sep 2009 till Mar 2010 and in that situation hospitals mostly induct green card holders to avoid any further visa issues.

Does the H-1 stamped in the passport not have the employer name (as its an employer specific visa)? And having a different name (hospital A) on the visa stamp and a separate employer on the I-797 (hospital B) might not make the CBP suspicious?

[mushtaqashraf]

Please reply!!

I can understand that my posts might have become irritating for you but thanks to you I now have made up a plan as to how shall I proceed from hereon. I would be obliged if you respond to this last post. Thanks!!

[txh1b]

The hospital can process a H1b again before June just the way the did this time. You can only enter 10 days before the start of your job on H1b.

Foreign affairs manual is what you need to dig into or google for regarding the validity of the visa. Note that I never suggest anything that is wrong on the forum and suggestions are based on legal methods only.

http://www.state.gov/documents/organization/87226.pdf

9 FAM 41.53 N8.3-3 Validity of H-1B When There is a
Change of Employer
(CT:VISA-1041; 09-26-2008)
a. After changing H-1B employers in accordance with DHS procedures for
making such a change, an H-1B visa holder may continue to use his or
her original H-1B visa for entry into the United States. Upon applying for
entry, the visa holder must present the new Form I-797, Notice of Action,
evidencing the approval of the change of employer in addition to the visa.

[mushtaqashraf]

Thanks!!!

I am extremely obliged to you for providing me such an in depth insight about the H-1 visa. There is absolutely no doubt in my mind that your advice are in accordance with the US regulations!!

Please remember me in your prayers so that I can get out of this mess. And may God bless you for this favor!!

Regards!