1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

Job Loss On H1b: (1) H4 To H1b Or (2) H4 Ead To H1b

Discussion in 'Nonimmigrant Visa Validity' started by saneguy, Jan 12, 2017.

  1. saneguy

    saneguy Member

    Messages:
    47
    Likes Received:
    0
    Trophy Points:
    6
    Hi Ron,

    I was impacted because of company restructuring yesterday and though my last work day was yesterday, my termination date is 2 weeks from now. I'm in my 8th year of H1B with approved I140 and current 797 valid until 11/2019. Looking for urgent help to understand the best path to ensure I can go back to H1B with a new employer as soon as I find it without invalidating my status.

    (1) I believe I can file form I539 to change from H1B to H4 using my spouse's H1B (she is in 8th year H1B with approved I140 from her employer) before my termination date to ensure I do not have invalid status in the US. Could you confirm if this would suffice until I find a new employer to transfer my H1B and that my H1B can be transferred even if my H4 gets approved before I find a new employer who can transfer?

    (2) I'm a little confused if I should apply for H4 EAD as well considering I can get back to H1B when I find a new sponsoring employer without applying for an EAD. Could you confirm if H4 EAD is required in my scenario to maintain my status or if that is a safer bet to guarantee work authorization in case H1B transfer has a chance of getting rejected for longer gap?

    (3) If hypothetically, I get my H4 EAD if answer to (2) is yes, then does that invalidate my ability to get H1B transferred to a new employer or voids my H1B needing me to go through the capped lottery system all over again?

    Sincere thanks for your advice and help as always.
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

    Messages:
    35,917
    Likes Received:
    4,298
    Trophy Points:
    25,213
    You have a couple of choices. The new 60 day grace period kicks in Tuesday. If I were you, I'd look for a job during the 60 days from your last check. If you can't find one, apply for COS to H4 and apply for an EAD at the same time. You can go back to H1B at any time.
     
    Greeeeencard likes this.
  3. saneguy

    saneguy Member

    Messages:
    47
    Likes Received:
    0
    Trophy Points:
    6
    I did not know the 60 day grace period rule and thanks for letting me know! That's a huge relief, phew! Apologies for the additional questions, but would really appreciate if you could just answer yes/no. It will really give me a peace of mind to focus on my job search!

    (1) Because my termination date is (last day of pay check) is 1/25 and the rule kicks in on 1/17, I'm have no out of status, correct? Also, my 60 day grace period would start from 1/26 - could you confirm this

    (2) I believe your recommendation was to wait until few days before the grace period ends to file COS to H4 and EAD (if I can't find an employer who can complete H-1B transfer filing before then) but I do need to file before the 60 day grace period ends (3/26)?

    (3) Can I start working before the end of 60 days if I find a new employer and the transfer of H-1B petition is filed before the 60 day grace period? Or do I have to wait for the 60 days period to end before starting at the new employer?

    (4) Is this just false? - You lose the ability to "reactivate" your H-1B in case you have an approved H4 and/or EAD before finding an employer who can transfer the H-1B?

    (5) I briefly read the new rule document on USCIS but there is a lot to digest. But, could you tell me if the new rule will allow my new employer to just go ahead and file for I-485 when dates open up based on my I-140 approval from previous employer or will I have to start the green card process again? I also heard that atleast the PERM wouldn't be required and the new employer would just need to file I-140 and 1-485.

    Also, would you posting an explanation of the new rule in simple English soon on your site or is it already posted? Thanks again for your time and help Ron.
     
  4. saneguy

    saneguy Member

    Messages:
    47
    Likes Received:
    0
    Trophy Points:
    6
    Hi Ron - I was just told by my employer that they will withdraw my H1B petition as of termination date of 1/25. I did some research online and on here and couldn't confirm but if the withdrawal happens before I find a new job:

    Would the new employer have to file a new H1B peition instead of a H1B transfer? Is this cap-exempt in my scenario and also can I start working immediately after the new H1B petition is filed or do I have to wait for the approval to start working?

    Hope to hear from you soon. Thank you.
     
  5. New Guy

    New Guy Senior Member

    Messages:
    217
    Likes Received:
    134
    Trophy Points:
    43
    I don't think you are cap exempt as you already completed more than 6 years.

    But as per the new regulation, you will still be in status if you find a job within 60 days and you can transfer your h1b.

    Your grace period starts from 1/26.
     
  6. saneguy

    saneguy Member

    Messages:
    47
    Likes Received:
    0
    Trophy Points:
    6
    Hi Ron - could you please confirm the following two things (would really appreciate it):

    (1) What is the implication of my employer withdrawing the H1B petition as of termination date in just over a week from now? Will that void the ability of a new employer to transfer H1B within the 60 day grace period or after that? Also, how is a new H1B petition different from an H1B transfer in my case (I know I will be cap exempt even with a new petition considering I have an approved I140 for 180 days; what I do not know is the implication of H-1B petition instead of H-1B transfer)?

    (2) If I end up with an approved H4 EAD and no job in sight, would a new employer be still able to file for H1B transfer or new H1B petition for me to start working immediately?

    Thank you for your time and advice again!
     
  7. Eren Yildirim

    Eren Yildirim Attorney at Law

    Messages:
    25
    Likes Received:
    7
    Trophy Points:
    3
    Withdrawal of your petition is expected when you are no longer working for the employer. This has no bearing on the grace period.

    You could work on your H4 EAD. You could also change status back to H1B.
     

Share This Page