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View Full Version : URGENT - Approved H1B and laid-off during cap-gap. PLEASE HELP.


rafa30
10-06-2017, 10:22 PM
I was working at Company A with my F1-EAD. My immigration timeline is as follows-
April 2017: Company A filed a new H-1B petition for me
June 2017: Selected in lottery, then received I-797 Approval Notice (valid until Feb 2020)
July 2017: Received new EAD with STEM extension valid till July 2019
August 5, 2017: Laid-off (termination effective immediately) (Company A did not withdraw H-1B petition from USCIS)
Oct 1 2017: Status changed from F1 to H-1B (NOT on payroll at Company A on Oct 1)
Oct 9-13 2017: Company A to withdraw the approved H petition
I found employment with Company B (a reputed multinational company) - written offer letter was accepted by me. Now, Company B says ”we cannot transfer an H-1B to our company that has never been validated. In order for it to have been validated, the candidate would have had to have been employed by Company A.” Thus, I am not able to start employment at Company B.

Q1. Is this a fair argument from Company B?
Q2. What should Company B / a new employer do to hire me with work authorization?
Q3. What is the best course of action for me to be able to start employment with a new employer as soon as possible?

My thoughts on options in this case:
OPTION 1
Instead of filing for H1B “transfer”, new employer should file “new” H1B application under consular processing. Since my application has already been selected in lottery once, I would be cap-exempt and should be able to get H1B with new employer. This is what a private immigration lawyer advised me. I am trying to convince Company B to do this, but they are not agreeing to do this.

OPTION 2
File an application (form I-539) for reinstatement with USCIS, to go back to F1 status. However, this procedure takes 5-8 months during which I can not work, and it is too long and uncertain. I do not want to get into this procedure.

PLEASE ADVISE. WILL APPRECIATE YOUR HELP.