H1 B transfer: Require advise

[withlovesid]

Hi,

I have a situation where I need some advise from the expert.

Below is my situation.

For the past few years, I have been working on L1 B visa for company A. Last year, Company B, applied for my H1 B with COS. While the petition was pending, I had to travel to India in may for an emergency and re-entered US on L1 itself in the same month.

All this happened before my H1 COS was approved and before the H1 start date. Anyhow once my H1 was approved (i got a new i-94), I joined the new company (Company B) and continued to work for them. In the mean time, they had also filed for an amendment request to correct the name in the petition and was also approved. I had infact asked my company on this and I was told that it wont be a problem, since I travelled back before the start date of the approved H1B change of status

Now I got an offer from Company C. I submitted all the document for the transfer. However, I heard from the new company that there is a problem since I left the US while my change of status application was pending, it is considered an abandonment and I might be out of status.

Is this is true? if so what are my options? I spoke to my current employer and they are still saying the same thing.

Can anyone please advise?

[raghvi]

Hi,

I have a situation where I need some advise from the expert.

Below is my situation.

For the past few years, I have been working on L1 B visa for company A. Last year, Company B, applied for my H1 B with COS. While the petition was pending, I had to travel to India in may for an emergency and re-entered US on L1 itself in the same month.

All this happened before my H1 COS was approved and before the H1 start date. Anyhow once my H1 was approved (i got a new i-94), I joined the new company (Company B) and continued to work for them. In the mean time, they had also filed for an amendment request to correct the name in the petition and was also approved. I had infact asked my company on this and I was told that it wont be a problem, since I travelled back before the start date of the approved H1B change of status

Now I got an offer from Company C. I submitted all the document for the transfer. However, I heard from the new company that there is a problem since I left the US while my change of status application was pending, it is considered an abandonment and I might be out of status.

Is this is true? if so what are my options? I spoke to my current employer and they are still saying the same thing.

Can anyone please advise?

Yes, a COS is abandoned if one travels outside US. As soon as you leave US you dont have a non immigrant status hence the question of COS continuing doesnt make sense.
But the issue that happens, like in your case, is if one moves in and out of US in quick succession USCIS doesnt gets notified of your departure after having approved a COS. It certainly want a wise choice to work with H1 employer even if you got the COS. Now whether this discrepancy creates problem in future GC processing or not depends upon the officer and how your lawyer presents the case that time.

I would suggest you clean the records up a bit by leaving US and re entering on a valid stamped H1 visa.

This is my opinion not legal advice.

[withlovesid]

Yes, a COS is abandoned if one travels outside US. As soon as you leave US you dont have a non immigrant status hence the question of COS continuing doesnt make sense.
But the issue that happens, like in your case, is if one moves in and out of US in quick succession USCIS doesnt gets notified of your departure after having approved a COS. It certainly want a wise choice to work with H1 employer even if you got the COS. Now whether this discrepancy creates problem in future GC processing or not depends upon the officer and how your lawyer presents the case that time.

I would suggest you clean the records up a bit by leaving US and re entering on a valid stamped H1 visa.

This is my opinion not legal advice.

Hi raghvi,

Thanks for the advise. I will get in touch with my currently employer and work on the next steps.
But couple of things want to re-confirm

You mentioned:

USCIS doesnt gets notified of your departure after having approved a COS

But my COS was approved after I came back and not before that. Infact my COS was approved, after 4 months of my travel.

2ndly, as I mentioned, I have applied for a name amendment on my petition and that too was approved.

So considering all of the above, is my COS still invalid? Am I currently Out of status.

[raghvi]

Hi raghvi,

Thanks for the advise. I will get in touch with my currently employer and work on the next steps.
But couple of things want to re-confirm

You mentioned:


But my COS was approved after I came back and not before that. Infact my COS was approved, after 4 months of my travel.

2ndly, as I mentioned, I have applied for a name amendment on my petition and that too was approved.

So considering all of the above, is my COS still invalid? Am I currently Out of status.

Its the timing of your departure that matters. If one leave US while a COS is pending, it is considered abandoned.

http://www.uscis.gov/sites/default/files/files/pressrelease/Travpub.pdf

....Service officers are reminded that an alien on whose behalf a change of nonimmigrant status has been filed and who travels outside the United States before the request is adjudicated is considered to have abandoned the request for a change of nonimmigrant status...

Surprisingly it didnt come up in amendment but then amendment generally doesnt need to verify past valid status. You could well be out of status.

This is my opinion not legal advice.

[withlovesid]

Its the timing of your departure that matters. If one leave US while a COS is pending, it is considered abandoned.

http://www.uscis.gov/sites/default/files/files/pressrelease/Travpub.pdf

....Service officers are reminded that an alien on whose behalf a change of nonimmigrant status has been filed and who travels outside the United States before the request is adjudicated is considered to have abandoned the request for a change of nonimmigrant status...

Surprisingly it didnt come up in amendment but then amendment generally doesnt need to verify past valid status. You could well be out of status.

This is my opinion not legal advice.

Thanks raghvi. Really appreciate your advise.