H1B Visa Need Help.
Steve Y
I held H1B visa and was laid off by my company. I can not find
any job in this economy for sometime even though I have three
years experience as software engineer. Is there any way that
some company can sponsor my H1B transfer to keep me in status,
since my H1B will expire soon after my last pay check.
Or there is some other better solution?
Best regards,
S Yan
Ingo Pakleppa
Well, first, you must immediately for a change of status to tourist.
Immediately means, the day you are laid off. INS has a zero-tolerance
policy.
Once you find a new job, you can then reapply for an H-1B.
boomer2
God, some people give such bad advice.
The INS does not say immediately, they give you a period of time to seek
alternative employment. The exact amount of time is not specified but
attorneys have interpreted it to mean 30 - 90 days. Your H-1B is
invalidated and you will be officially out of status once your
employment ends, but you need not leave immediately. Take a little bit
of time to look for something else and get an H-1B transfer. The INS are
usually OK if they see that you haven't been out of status for too long
because they know what the economy is like. That's why they added the
'seeking alternative employment' clause in the first place. If you don't
find anything a company cannot sponsor you just to stay here and look
around, they must be paying you to work for them in accordance with the
INS guidelines.
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Posted via http://britishexpats.com
Sylvia Ottemoeller
"boomer2" <mem...@britishexpats.com> wrote in message
news:567697.1...@britishexpats.com...
> God, some people give such bad advice.
> The INS does not say immediately, they give you a period of time to seek
> alternative employment.
Do you have any documentation of this?
The exact amount of time is not specified but
> attorneys have interpreted it to mean 30 - 90 days. Your H-1B is
> invalidated and you will be officially out of status once your
> employment ends, but you need not leave immediately. Take a little bit
> of time to look for something else and get an H-1B transfer. The INS are
> usually OK if they see that you haven't been out of status for too long
> because they know what the economy is like. That's why they added the
> 'seeking alternative employment' clause in the first place. If you don't
> find anything a company cannot sponsor you just to stay here and look
> around, they must be paying you to work for them in accordance with the
> INS guidelines.
Boomer2, would you be willing to tell us how many H-1B holders you have
personal knowledge of that were laid off within the last few months, looked
for a job for 30 to 90 days, and successfully used H portability to get on
the payroll of a new employer?
It seems to me that you may not be familiar with the developments of the
last few months in the INS world.
Stuart Brook
Boomer ... you are WAY out of touch ... so the result is that YOU are
giving REALLY bad advice!
There is no "seeking alternative employment" clause in the H1B rules.
A year or so ago, after the H1B caps were increased and the portability
clause was implemented, the rules were being interpreted somewhat in the
manner you suggest, and the INS was letting people get away with it.
There is NOTHING in the law that required the INS to permit this.
The portability clause gave a new employer 60 days to get on file a new
I-129 application for a transfering employee. That was liberally being
taken to mean that an employee had say 30-45 days to find a new
employer. It is not what was meant by the law! The law required that
the transfering employee went to work for the new employer straight
away, and the new employer had 60 days to complete the LCA and get the
I-129 into the appropriate INS service centre from the date of
termination of the previous employment. Alternatively, if you left the
country, the H1B employment transfer request could be filed within 60
days and you could re-enter to begin your new employment upon approval.
There was NOTHING in that law that permitted the H1B employee to fall
out of status unless he immediately started working for the new
petitioning H1B employer.
In the last year, the INS stopped permitting this liberal interpretation
of the law, and have gone further and no longer forgive any period out
of status. If you haven't got a job lined up ready to go the next
business day after your last at the old employee, you drop out of
status, and are required to leave the US to get a new visa and re-enter.
The only alternative which may work if you have not found employment to
start the day after your old employment ends is to file for a request to
change to some other status, such as B2 ... which may or may not be
permissible. Your intention in filing a B2 request is to request time
to wind up your affairs in the US with the intention of leaving. If you
should find new employment in that time, you can then petition for the
H1B transfer. It is important to remember that the petition for the B2
does require that you have a residence abroad you have no intention of
abandoning, so this will NOT work if you have a Green Card request in
progress from your previous employment or by other means, since this
signifies immigrant intent.
Stuart
boomer2
There is no reason whatsoever that you cannot use H-1B portability. My
attorney in Atlanta assures me that he has filed transfers for dozens
of people, who have lost their jobs and have found new employment
within a reasonable period of time. I personally only know of one
person who moved to Denver to take a new H-1B position about 6 weeks
after losing her other job, she submitted her paperwork to the INS and
started the new job immediately. The INS requires that the
documentation is FILED prior to starting with the new employer, but you
can then begin your new employment while waiting for a response. Like I
said, my attorney is apparently making quite a comfortable living
filing these transfers for people.
Stuart Brook
There is no reason not to use H1B portability, agreed.
The thing is that if you go out of status (and this in the last few
months), you will be required to leave the US to get a new passport
visa, even if the employment transfer is approved. There is now Zero
Tolerance on out of status situations when it comes to extending /
altering / changing status. If you allow yourself to drop out of status
by, for example, just staying after your layoff, you will be required to
leave to get a new visa.
ltd7551
I want just to share my H1-B small experience to see if it helps.
I was lucky to find a new offer the week after I had resigned (At that
time I didn't know that I would be out of status after resigning, now I
know better!). The lawyer of the new company submitted all the paperwork
and was able to transfer the visa from the old company to the new one.
There was no need to apply for a new H1-B.
Now, this was really good luck.
I have three friends that had h1-b visas and that were laid off.
One of them switched to a student visa, and is in the process of looking
for a job while attending a university at this moment.
The other one applied for a tourist visa, was trying to find a job, did
not succeed, and finally had to leave the US.
The other one also left the country because she could not find a
job either.
By the way, these last two friends found jobs abroad and are doing great
now, not too bad news after all!
Bottomline...APPLY TODAY FOR EITHER A STUDENT OR A TOURIST VISA if you
want to try staying here. Worst that can happen is to succeed
somewhere else :)
Ingo Pakleppa
You are referring to the clause that the INS can forgive periods of being
out of status. Unfortunately, in the aftermath of 9/11, INS issued a memo
stating that they are now implementing a zero-tolerance policy and will NO
LONGER forgive even a day of being out of status.
Your H-1B status actually ends the day that you are laid off (not even ten
days later, as some people in the past have falsely suggested).
