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Out of status, employment gap and status revalidation Gap in employment(paystubs) and the resulting problems during status transfer and green card filing.

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  #1  
Old 03-08-2013, 03:02 PM
absessive absessive is offline
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Exclamation Laid off on H1B, new job starts over 2 months after last date

I got laid off on February 22nd, 2013. I was able to find a new job. However, the start date for that job is April 29th, 2013. So there is over 60 days of gap between the two. Since I've been out of status since 02/22/2013, what are the scenarios that I would face. What are possible issues?
From the forums I've been able to make out the likely issues
1. The H1B transfer goes through and get new I797 with an I-94.
2. Once they start the processing of the H1B transfer (months after applying), there will be an RFE. If so, how do I deal with that?
3. The H1B transfer goes through but no I-94.
If this is the case, do I have to return to India for a new H1 stamping before starting the job? Is there a high chance of a visa reject in such a scenario?
4. WORST case scenario. No H1B transfer, DHS sends me packing back.

I hope that it doesn't end up badly, but I would like to know from someone who has undergone a similar situation about what my options are. Would premium processing help for the H1 transfer?
Any suggestions/recommendations appreciated.
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  #2  
Old 03-08-2013, 04:32 PM
Flyingcrow Flyingcrow is offline
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I am sorry to say, but you will be denied entrance at port of entry quoting you were out of status, even if you get your visa stamped outside the country. I am sure about that, unless there is human error, the officer fails to check.

My best recommendation would be, talk to an attorney, without wasting further time.
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  #3  
Old 03-08-2013, 05:01 PM
absessive absessive is offline
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Quote:
Originally Posted by Flyingcrow View Post
I am sorry to say, but you will be denied entrance at port of entry quoting you were out of status, even if you get your visa stamped outside the country. I am sure about that, unless there is human error, the officer fails to check.

My best recommendation would be, talk to an attorney, without wasting further time.
Thank you for the reply . While, this isn't what I necessarily was expecting to hear, I consider this is a very possible scenario. Hence, my question on what my options are, and given that USCIS really doesn't have a 'grace period', what is the general, might I say accepted time-frame between the lay-off and a new job starting, so that these issues do not occur?
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  #4  
Old 03-08-2013, 05:45 PM
abcdgc abcdgc is offline
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Quote:
Originally Posted by absessive View Post
I got laid off on February 22nd, 2013. I was able to find a new job. However, the start date for that job is April 29th, 2013. So there is over 60 days of gap between the two. Since I've been out of status since 02/22/2013, what are the scenarios that I would face. What are possible issues?
From the forums I've been able to make out the likely issues
1. The H1B transfer goes through and get new I797 with an I-94.
2. Once they start the processing of the H1B transfer (months after applying), there will be an RFE. If so, how do I deal with that?
3. The H1B transfer goes through but no I-94.
If this is the case, do I have to return to India for a new H1 stamping before starting the job? Is there a high chance of a visa reject in such a scenario?
4. WORST case scenario. No H1B transfer, DHS sends me packing back.

I hope that it doesn't end up badly, but I would like to know from someone who has undergone a similar situation about what my options are. Would premium processing help for the H1 transfer?
Any suggestions/recommendations appreciated.
60 days of gap or 90 days of gap - none of that make any difference. The law doesn't say that you have to be out of the country on the day on the last day of your job. This is a grey area and one that is at the discretion of the officer.

As per the law, you can start the new job as soon as the new employer puts in H1-B transfer application. You do not have to wait for the approval for the petition to be approved.

When H1 is approved within the country, they will send you new I-94 extended to the last day of the new H1-B status. I-94 is not the reason why you have to go out and reenter.

If you go out, just go for stamping, try carrying minimum of 2-3 recent pay stubs and letter from new employer and you should be good to go. Many people face this. If you are careful you will be fine.
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  #5  
Old 03-08-2013, 05:53 PM
absessive absessive is offline
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Quote:
Originally Posted by abcdgc View Post
60 days of gap or 90 days of gap - none of that make any difference. The law doesn't say that you have to be out of the country on the day on the last day of your job. This is a grey area and one that is at the discretion of the officer.

As per the law, you can start the new job as soon as the new employer puts in H1-B transfer application. You do not have to wait for the approval for the petition to be approved.

When H1 is approved within the country, they will send you new I-94 extended to the last day of the new H1-B status. I-94 is not the reason why you have to go out and reenter.

If you go out, just go for stamping, try carrying minimum of 2-3 recent pay stubs and letter from new employer and you should be good to go. Many people face this. If you are careful you will be fine.
I had a discussion about this with my new employer's attorney and legal team handling the H1 transfer, and they pretty much said the same thing, and that the start date is not an issue.
Now I'll keep my fingers crossed. Thanks for the reply.
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  #6  
Old 07-25-2013, 05:30 AM
lanew lanew is offline
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Default Laid off on H1B, new job starts over 2 months after last date

Hi absessive,

I am in the same situation. I found a job 19 days after my lay off last day and the H1 transfer was filed 1 month after the lay off. I got an RFE on the PP H1B petition with the new company. What are the chances? Could you share your result and how you went about it?

Thanks so much.
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  #7  
Old 07-25-2013, 01:13 PM
vishalgupta2 vishalgupta2 is offline
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How long have you been with the new employer?
What is the RFE for? (There is a good chance that RFE is for stuff like employee-employer relation, project details, etc)
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  #8  
Old 07-25-2013, 01:21 PM
lanew lanew is offline
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vishalgupta2 How long have you been with the new employer?
What is the RFE for? (There is a good chance that RFE is for stuff like employee-employer relation, project details, etc)

Hi vishalgupta2

Thanks for the response. I got the offer letter within 3 weeks of of my last working day with the previous company. I haven't started since we are still waiting on the H1B approval.
RFE hasn't arrived yet in the mail but the Premium Processig clock had stopped at Initial Review stage until the required action is taken from the petitioner. (Waiting on that)
My I-94 and H1B visa stamp in the passport is valid until 2015.
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  #9  
Old 07-25-2013, 01:28 PM
vishalgupta2 vishalgupta2 is offline
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You should have started work with H1B receipts. That would make it easier.

Let's wait for the RFE. I understand your curiosity but there is nothing that can be done until you have the RFE.

My hunch is you may be OK.
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  #10  
Old 07-25-2013, 01:49 PM
lanew lanew is offline
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Thanks. Yeah, waiting for the RFE.

Couldn't have worked on the receipt as I think I was "out of status" . Am I still "out of status" now that the petition is in process? Does USCIS overlook these small gaps or do you get petition approved on Consular notification? I found a job soon after so I was thinking I am fine but not sure. I also have a US higher education.
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  #11  
Old 07-25-2013, 01:59 PM
vishalgupta2 vishalgupta2 is offline
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1 month gap is ignored most of the times. This is why I said, you want to wait for the receipt.
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  #12  
Old 07-25-2013, 02:27 PM
manunairt manunairt is offline
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Hi Vishal,

One of my close friend had a simliar situation in 2008, laid off mid September and got a new job with joining date November mid. He dint have any issues, not even an RFE. Got the new I-797 and went back to his home country and back to USA with the old visa that was still valid.

Per him, the only challenge he had when we went for his subsequent visa stamping next year, the visa interview was bit challenging as the consular officer quizzed him little bit more on the gap. Having said that every case is unique and best bet would be to consult an attorney

Regards and Wishes
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  #13  
Old 07-25-2013, 02:46 PM
vishalgupta2 vishalgupta2 is offline
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Hi Manu,

I never said he will have a problem. I only said, he should be OK. The best thing to do will be to wait for RFE.

I totally understand his anxiety and the scare of being thrown out of the country.

Like you, I also think that he should have NO issues and RFE is likely for employer documents etc.

He should push the employer for a quick response though as longer it takes, longer he stays out of status.
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Old 07-25-2013, 04:31 PM
lanew lanew is offline
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Thanks guys. I hope it is just a minor RFE. Waiting as of now until it arrives at my employer's mail. An attorney said I am ok as of now in terms of status since my file is pending and in process. Is that true? I thought it made sense.
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  #15  
Old 07-25-2013, 04:43 PM
vishalgupta2 vishalgupta2 is offline
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Originally Posted by lanew View Post
Thanks guys. I hope it is just a minor RFE. Waiting as of now until it arrives at my employer's mail. An attorney said I am ok as of now in terms of status since my file is pending and in process. Is that true? I thought it made sense.
This is probably incorrect, AFAIK, on H1B, you need to be employed AND PAID all the time. Any point you are NOT paid, you are out of status.
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