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I was let go by my employer end of January 2010. They gave me 2 weeks of severance, so my last pay check was in February 2010. I have about 100 hours of vacation time (close to 2.5 weeks) for which I have not been paid. My company allowed me to be on unpaid leave if I made a request for personal reasons. I made that request and it was agreed I will be on unpaid leave til the end of June 2010. The company lawyers suggested that as soon as I find a new employer willing to transfer my H1B I can request my current employer to issue my last 2 weeks of pay (paystubs for the 100 hrs of vacation) to help in the H1B transfer. However, another lawyer I consulted thinks differently, she believes USCIS is more stringent and will ask for further evidence. Do you agree with her response pasted below? Please advice.
I HAD CONTACTED HER EARLIER TODAY REGDING A H1B TRANSFER WHEN I LEARNT A NEW EMPLOYER WAS GOING TO BE MAKING A JOB OFFER AND THIS IS WHAT SHE HAD TO SAY>
What I want you to understand is, that we can apply for a change of H-1B employer and an extension of any time you have left available (including adding back any time you were outside the US) with one or no paystubs, but the USCIS may only grant the H-1B approval, and NOT the extension within the US, because you are technically out of status. Because layoffs are so common right now, the USCIS is issuing requests for additional evidence to prove that the worker has maintained status and has been working. They are not as nice as they used to be.. You can imagine that the USCIS is seeing a lot of what you are describing—employers letting employees take vacation and issuing checks at a later date, but based on this scenario, I believe they will find you are out of status, because you are. If you had been terminated a week or two ago, or even 2 or 3 weeks ago, you might be given leeway by the adjudicating officer, but there is no guarantee, because….you are out of status, regardless of dragging out the paystubs to a later date then your termination date.
The worst case scenario, is that you are granted the new H-1B approval and you are required to go to your home consulate for processing. As long as you have not worked without permission and you have not accrued unlawful presence (which you haven’t), you can get a new H-1B even though you didn’t maintain your status. You would of course state in the new H-1B petition that you are out of status through no fault of your own, but it is up to the USCIS to decide whether to ask you to consular process.
I will be happy to help you with the extension request, but I want you to fully understand what you are looking at—I don’t want to give you the false impression that your case will be approved without the USCIS requiring you to depart and re-enter after going back to your home consulate because I think that is what will happen.
I HAD CONTACTED HER EARLIER TODAY REGDING A H1B TRANSFER WHEN I LEARNT A NEW EMPLOYER WAS GOING TO BE MAKING A JOB OFFER AND THIS IS WHAT SHE HAD TO SAY>
What I want you to understand is, that we can apply for a change of H-1B employer and an extension of any time you have left available (including adding back any time you were outside the US) with one or no paystubs, but the USCIS may only grant the H-1B approval, and NOT the extension within the US, because you are technically out of status. Because layoffs are so common right now, the USCIS is issuing requests for additional evidence to prove that the worker has maintained status and has been working. They are not as nice as they used to be.. You can imagine that the USCIS is seeing a lot of what you are describing—employers letting employees take vacation and issuing checks at a later date, but based on this scenario, I believe they will find you are out of status, because you are. If you had been terminated a week or two ago, or even 2 or 3 weeks ago, you might be given leeway by the adjudicating officer, but there is no guarantee, because….you are out of status, regardless of dragging out the paystubs to a later date then your termination date.
The worst case scenario, is that you are granted the new H-1B approval and you are required to go to your home consulate for processing. As long as you have not worked without permission and you have not accrued unlawful presence (which you haven’t), you can get a new H-1B even though you didn’t maintain your status. You would of course state in the new H-1B petition that you are out of status through no fault of your own, but it is up to the USCIS to decide whether to ask you to consular process.
I will be happy to help you with the extension request, but I want you to fully understand what you are looking at—I don’t want to give you the false impression that your case will be approved without the USCIS requiring you to depart and re-enter after going back to your home consulate because I think that is what will happen.
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