Laid Off on H1, Employer willing to help with a B1/B2 - If pending, new H1 Transfer?

[rasharma]

Laid off on H1. Current employer offering to apply for B1 / B2 (have to clarify if this will be a COS and what happens if after filing a COS they withdraw my H1 - I have 35 months left on my first H1)...

Now if my B1 is pending (as this usually takes 2-3 months I am told) and my new employer applies for H1 (with the B1 / B2 case number - to withdraw cancel the B1 / B2 request):

1. What happens?

2. Is this a safe option?

3. Will the new employer be able / agree to file a transfer?

4. What happens if after filing the B1 / B2 request the old employer withdraws H1 (will the new employer still be able to transfer and will I still be cap exempt?)

5. If I find a job after the B1 / B2 is approved, what are my options (in terms of H1 transfer)

Please help as this is very urgent...

FYI: My current I-94 is valid till mid 2015

[raghvi]

1. There is nothing called withdrawal/cancel of B1/B2 in your case, if you do that you would go out of status and once you are out of status you cannot get a successful transfer.
2. Cant say if it is safe or not but it is one of the options, chances of success are not very high as H1 to B2 are not easily approved and can take up to 3-4 Months for a decision, on B2 you cannot earn and work so there is financial pressure too. Further a B2 to H1 transfer later on again is not easy.
3. The new employer would want to see your latest pay stubs which you would not be able to provide as your current employer has stopped paying you, and they may be reluctant to proceed with a pending H1 to B2 receipt. If any employer does agree, high chances you would end up with a consultancy which will charge you for your own H1 processing.
4. It doesn't matter if they withdraw, as your H1 isn't fully used you would be still cap exempt.
5. Again file a B2 to H1, but as I said success rates are low.

This is my opinion not legal advice.

[rasharma]

raghvi

Thank you. I really appreciate the feedback.

However, what I am thinking of is a little different:

- Before my old employer cancels my H1, they are willing to help me file for a B status COS (i-539)
- My old employer says, that although chances of approval of B are low, it will give you some time to wrap things up, as it will remain in pending status for about 2 months
- They also say that if during the time the B's i-539 is pending, and if you find employment, request your new employer to file your H1 transfer in Premium processing and request them to include your B COS application's case number and request USCIS to stop the B process and continue with the H1 transfer.

My questions were based around this scenario. Do you guys think this could work (as I am interviewing with a few firms and might find a position in a few weeks)?

Will the new employer be OK with this (since there is no B to H1 transfer involved if I find a position before the i-539 for B status is approved)?

Also, is this an acceptable way to maintain status?

[raghvi]

You are not understanding that in order to maintain valid status on H1 you have to get paid, in order to move to H1 for future employer you have to be in valid status till the day you move to H1.

Suppose you decide to move to new employer n 15th March 2014, what would be your status on 14th March? H1? No because you are not getting paid by H1 employer. B1? No because it is still pending. Hence USCIS will not allow you to move to H1 till your H1 to B1 is adjudicated first. A pending COS application doesn't grant you a valid status.

This is my opinion not legal advice.