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H1b Transfer And Right Time To Switch

Discussion in 'Nonimmigrant Visa Validity' started by J_Pirlo, Jul 24, 2015.

  1. J_Pirlo

    J_Pirlo New Member

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    Hello,

    So at this point in time, I am on an H1B with my current Employer. I wish to work for a new Employer. Interview process and other negotiations are in progress. There are two scenarios that I see will arise
    1. The reason that I want to switch is that, my current Employer is trying hard to get a new project for me (old project ended) and if not possible in 2-3 weeks, they will ask me to go back to my home Country. if within this time, the new employer raises the new H1B petition for me and receives the receipt number, I wish to raise my resignation.
    2. Lets say my current company is not able to find the right job for me and ask me to go back immediately. I will probably check and go on a Loss of Pay Leave for 2 weeks and let them raise Air tickets to fly back to my home country after that . if within this 2 week period, the other company raises my H1B petition , I wish to put in my resignation then

    The confusion that I have is, instead of the 2 week notice period after I put in my papers, they might terminate me immediately since I am already without a project and there is no reason for them to hold me back. At that point in time, they might also send notice to USCIS to revoke the H1B that I have with them.
    Therefore , would I still be in legal Status in US. Also, if my new Employer raises the new H1B request, they would need my previous 3 months payslips. And if I were on a LOP (2nd scenario) at that time, in my current company, I would still have one payslip that shows 0$. Would this cause an issue while doing the H1B Transfer

    Regards,
    J_Pirlo
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Once you terminate employment, you have ten calendar days in which to file a new petition or leave. After that, you will be in unlawful status.
     
  3. J_Pirlo

    J_Pirlo New Member

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    Thanks Ron. So what should happen within those 10 days is for the new Employer to file the new H1B and get a receipt number. Am I right ?
    What if within that time, my current employer files to cancel my current H1B. Would that impact anything ?
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    As long as the new employer physically delivers the new petition to the USCIS within that ten day period, it doesn't matter what anyone else does. You should suggest that the file the LCA immediately, if they haven't done so already. It doesn't commit them to anything unless they hire you, but filing now will save time.
     
  5. J_Pirlo

    J_Pirlo New Member

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    Ron, I get your point. Because unless they file the LCA and if its a new LCA and it completes the 10 day filing period, they cant file the transfer, right ?
    before we close the thread, just to confirm on two more points
    1) This 10 day period: you would mean 10 Business days right ?
    2) Going on Loss of pay: would a payslip that shows as paid 0$ still stay intact as an actual payslip

    Much thanks !
     
  6. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It is ten calendar days from the last day worked.
     
  7. J_Pirlo

    J_Pirlo New Member

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  8. surge

    surge New Member

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    Hi Ron:

    Does this 10 day grace period for filing another I-129 seem discretionary? As per this 2010 Q&A:

    "2. Laid Off H-1B Employees Without Advance Notice - What if you are an employee in H-1B status and you are laid off with no advance notice before the end of the validity period? Can you begin working (or port to) another job with a different employer?

    USCIS Response: An H-1B nonimmigrant is admitted to be employed by the sponsoring H-1B petitioner. If the employment ends, this condition is no longer satisfied and the individual is no longer in a lawful nonimmigrant status and may be subject to removal proceedings. Therefore, the terminated H-1B nonimmigrant in this scenario may not be able to port to another employer, subject to certain discretionary exceptions.

    Depending on the individual's circumstances, the H-1B worker may be eligible to remain in the United States due to a request for a change of status or for extension of stay that is filed while that individual is maintaining H-1B status, or on account a pending adjustment application. In deciding whether to approve a change or extension of status for any nonimmigrant who has fallen out of status, however, USCIS may exercise discretion on a case-by-case basis to grant the extension or change of status despite the failure to maintain status.

    There is no automatic 10-day or other grace period for terminated employees holding H-1B status, so once the individual is no longer in a lawful nonimmigrant status, he/she usually must depart from the United States."
     
  9. J_Pirlo

    J_Pirlo New Member

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    Hello Ron, could you confirm if this is indeed the case
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    It isn't a grace period. The regulations give an H1B ten days to leave the country following termination of employment. That is considered lawful status.
     

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