Laid off while on H1.. Company plans to rehire one month after termination

[cynozure]

Hi,

I am in a very strange situation and not sure how to proceed. Hope some of you folks would be able to guide me

I recently got laid off from my job at say company ABC. I had been working as a full time employee on H1 past 3.5 years. Last working day was Sept 15 and this was part of a mass layoff.

I accepted an offer with another contract company XYZ and the plan was to join back into my previous employer ABC but this time as a contract employee.
Things were proceeding and they were about to file H1 when ABC comes back saying there has been a policy change and they cannot bring me in as a contract but instead is willing to rehire me back as a full time employee. :|

Now here is my situation:
1. i have been out of status since Sept 15 ( last paycheck) in hopes of landing my new H1 soon and joining as contract back into ABC
2. the contract firm XYZ is ok with continuing the H1 application ( but should I still go ahead with that ? )
3. Is it best to leave US and go back to India and try to get the H1 applied though consular notification ( cap exempt) through my original employer ABC without wasting any more time here ?

i should hopefully be getting the new offer with ABC in next few days. What is my best course of action ?

This is urgent, so appreciate any help.

[Nattybone]

Hello, Cynozure.

Your situation is not clear with your statements: i) Accepted an offer XYZ, and ii) I have been out of status since September 15.

If you have been working with XYZ then they should run your payroll (after a transfer petition) and you should be in status. Right?

Assuming the other side, you have been out of status for a month and your employer revoked your H1B. If the same company / or another company files a fresh sponsorship for you, it will most likely get denied as you are out of status. Best outcome would be that you get an H1B approval subject to Consular Processing. But, once you are out of status, you cannot assume legal status - one needs to leave the country and enter with the valid visa.

Can someone not run your payroll for October 15 (XYZ or ABC)? If XYZ is a small Desi Company, they will know what to do.

I hope this helps.

Wishing you luck.

Cheers,

Hi,

I am in a very strange situation and not sure how to proceed. Hope some of you folks would be able to guide me

I recently got laid off from my job at say company ABC. I had been working as a full time employee on H1 past 3.5 years. Last working day was Sept 15 and this was part of a mass layoff.

I accepted an offer with another contract company XYZ and the plan was to join back into my previous employer ABC but this time as a contract employee.
Things were proceeding and they were about to file H1 when ABC comes back saying there has been a policy change and they cannot bring me in as a contract but instead is willing to rehire me back as a full time employee. :|

Now here is my situation:
1. i have been out of status since Sept 15 ( last paycheck) in hopes of landing my new H1 soon and joining as contract back into ABC
2. the contract firm XYZ is ok with continuing the H1 application ( but should I still go ahead with that ? )
3. Is it best to leave US and go back to India and try to get the H1 applied though consular notification ( cap exempt) through my original employer ABC without wasting any more time here ?

i should hopefully be getting the new offer with ABC in next few days. What is my best course of action ?

This is urgent, so appreciate any help.

[cynozure]

Hello Nattybone,
Appreciate your reply.
Just to clarify, I did accept the offer, but XYZ is still in process of filing my H1. They were getting done with LCA and other paperwork before they can apply for H1. Hence I have been out of status while i was waiting for that. I stuck around because the law firm handling the H1 for XYZ said that they would send the petition in explaining the reason for me being out of status for a short duration, and that from their experience they have not had any issues in applying H1 like that. But now i cannot join XYZ, all this time that I have waited around in US has gone to waste.

Now that my previous employer has decided to rehire me with a new offer, I am not sure what I need to do.

So i see what you are saying there, that I get Visa applied on Consular processing and then leave country and come back on new i94.
I will check with ABC on that and see how to proceed.

[Nattybone]

Hello, Cynozure.

Ok. I understand. From my understanding of H1B and visa status in US, a person cannot be out-of-status from his/her visa. H1B is employment driven, if you lose employment (payroll not run) then you lose the status. Now, when one someone loses the status, it cannot be regained while being in the US. One has to exit and re-enter US (upon reentering the new visa should be in place).

So, if your earlier company can run your payroll (if it is a small company they can do that) for October 15 (also hoping they have not revoked your visa) - like they would in normal course - then it might just work (i am not 100% how this will work or if it will work). Otherwise, your petition for resuming work with your earlier will most likely get denied (because you do not have a legal status in USA). You should still try, you never know. The USCIS, if they do not deny your petition, might give an approval but ask you to go for Consular Processing as you are out of status.

I highly doubt that you will get an approval and allowed to work without leaving the country. But, do check with your Immigration Attorney.

I hope this helps. Wishing you all the best.

Cheers,

Hello Nattybone,
Appreciate your reply.
Just to clarify, I did accept the offer, but XYZ is still in process of filing my H1. They were getting done with LCA and other paperwork before they can apply for H1. Hence I have been out of status while i was waiting for that. I stuck around because the law firm handling the H1 for XYZ said that they would send the petition in explaining the reason for me being out of status for a short duration, and that from their experience they have not had any issues in applying H1 like that. But now i cannot join XYZ, all this time that I have waited around in US has gone to waste.

Now that my previous employer has decided to rehire me with a new offer, I am not sure what I need to do.

So i see what you are saying there, that I get Visa applied on Consular processing and then leave country and come back on new i94.
I will check with ABC on that and see how to proceed.

[cynozure]

Hello Nattybone,

I just heard back from the original company. So they are right now checking with USCIS on whether it acted upon the revocation that the company had sent out on Sept 15. If my Visa is not revoked, I can make a quick transition back into the company.
But they say that if indeed my visa has been revoked then I can only apply for H1 in April 1 and then join next October.

This is what the HR is saying.

Even if my H1 has been revoked, they should still be able to file a new petition for me on H1 cap exempt right ?
Do we have to wait till April to apply for H1 in this case or can they apply for a new H1 immediately since i still have 3 years left to complete my 6 years ?
Any idea about how this works ?

Thanks for all your help. Really appreciate it.

[Nattybone]

Hello, Cynozure.

As regards filing a H1 petition for you now (by your earlier employer or a new one), you need not wait till next year. Your company can immediately file a I-797 for you (you will have to leave USA - i feel) and you can resume work right away (as soon as your paperwork is sorted out).

You need NOT wait till next year April and you do NOT have to be put in the H1B draw again. You ARE cap-exempt.

You just need to sort out this paperwork which might take a month or so in Priority Processing. Try to push your company for a Priority Processing. In 3-4 weeks, you will get a new I-797. If you have to leave USA, then add another 2-3 weeks for visa stamping. If you are lucky (extremely lucky, actually) and USCIS approves I-797 without Consular Processing then you are good to start working in 3-4 weeks, once you get the new I-797.

Your company's HR is not correct in their information on H1B visas. Try to connect with your company's Immigration Attorney. You can check this information from any attorney. Many on this forum itself will let you know.

Personal Opinion.

I hope this helps. Wishing you all the luck, my friend.

Cheers,

Hello Nattybone,

I just heard back from the original company. So they are right now checking with USCIS on whether it acted upon the revocation that the company had sent out on Sept 15. If my Visa is not revoked, I can make a quick transition back into the company.
But they say that if indeed my visa has been revoked then I can only apply for H1 in April 1 and then join next October.

This is what the HR is saying.

Even if my H1 has been revoked, they should still be able to file a new petition for me on H1 cap exempt right ?
Do we have to wait till April to apply for H1 in this case or can they apply for a new H1 immediately since i still have 3 years left to complete my 6 years ?
Any idea about how this works ?

Thanks for all your help. Really appreciate it.