H1B petition withdrawal followed by approval and then transfer

[rajleo19]

Hi,

I was working with a company A on H1B (a stamped one on my passport) and lost my job on 4th May 2015. On this same day company A asked USCIS for H1B petition withdrawal. To save sanity of my H1b on 8th May 2015 I found a new employer, company B (a consulting firm), who filed for H1B and I got my EAC receipt on 18th May 2015. I got a RFE in between but my H1B finally got approved with extension (i.e with I94) on 24th June 2015. I started working with company C site on 22nd June 2015 as a contractor i.e on Company B's payroll.

Now there is more than a month gap in between pay stubs here, from company A (ended on 4th May) to company B (started on 22nd June). Currently I have only one pay stub from company B.

Now,company C wants to hire me full time and wants to do a H1B transfer from company B as soon as possible.

1. Can company C safely initiate H1B transfer right away using only one pay stub from company B?
2. Or, should it wait for around 3-4 pay stubs before doing a transfer? Chance of getting VISA approved is better in option#1 or #2?
3. Attorney in company C is saying, because I was out of status in between it is safest to go for a consular processing, which means I will have to go out of country and re-stamped my VISA, which I am questioning here. I believe once I have a valid VISA and I am in status I don't really need a consular processing and need to go out of country. Am I right here?
4. How being out of status will affect my GC processing in future?

Waiting for a reply as soon as possible.

Thanks.

[shervin143]

1. Can company C safely initiate H1B transfer right away using only one pay stub from company B?
>>> Very difficult to predict. If USCIS realize that you were out of status, then they can reject the transfer or may approve the H1B for consular process.

2. Or, should it wait for around 3-4 pay stubs before doing a transfer? Chance of getting VISA approved is better in option#1 or #2?
>>> Since you were out of status, it is advisable to wait a couple more months before you initiate the transfer. It is good to have at least 3 pay slips.

3. Attorney in company C is saying, because I was out of status in between it is safest to go for a consular processing,
>>> If they file for CP, then the petition will get approved, but you may have to leave and return back in H1B visa.

which means I will have to go out of country and re-stamped my VISA, which I am questioning here. I believe once I have a valid VISA and I am in status I don't really need a consular processing and need to go out of country. Am I right here?
>>> If you already have a valid H1B visa in the passport (even if it has different employer's name on it), you can use that to return back. By showing Company C approval notice at the POE, you will get an I-94 associated to that employer. So you can work for employer C. If you don't have a valid H1B visa in the passport, then you will have to get it stamped. Whether there will be any issues during stamping for being out of status, well, no one can predict that.

4. How being out of status will affect my GC processing in future?
>>> Hard to predict. It depends on the person who handles your case. If they look at your W2 for that year and find a gap, then they can cause issues. They may even overlook that.

[rajleo19]

1. Can company C safely initiate H1B transfer right away using only one pay stub from company B?
>>> Very difficult to predict. If USCIS realize that you were out of status, then they can reject the transfer or may approve the H1B for consular process.

2. Or, should it wait for around 3-4 pay stubs before doing a transfer? Chance of getting VISA approved is better in option#1 or #2?
>>> Since you were out of status, it is advisable to wait a couple more months before you initiate the transfer. It is good to have at least 3 pay slips.

3. Attorney in company C is saying, because I was out of status in between it is safest to go for a consular processing,
>>> If they file for CP, then the petition will get approved, but you may have to leave and return back in H1B visa.

which means I will have to go out of country and re-stamped my VISA, which I am questioning here. I believe once I have a valid VISA and I am in status I don't really need a consular processing and need to go out of country. Am I right here?
>>> If you already have a valid H1B visa in the passport (even if it has different employer's name on it), you can use that to return back. By showing Company C approval notice at the POE, you will get an I-94 associated to that employer. So you can work for employer C. If you don't have a valid H1B visa in the passport, then you will have to get it stamped. Whether there will be any issues during stamping for being out of status, well, no one can predict that.

4. How being out of status will affect my GC processing in future?
>>> Hard to predict. It depends on the person who handles your case. If they look at your W2 for that year and find a gap, then they can cause issues. They may even overlook that.

Hi Shervin,

Thanks for your response. Regarding your comment "If you already have a valid H1B visa in the passport (even if it has different employer's name on it)", I have a question -
I have a VISA stamping in my passport with employer A, who has already withdrawn its petition. But when it was stamped, expiration date on it was of Sept 2016. My questions is does this VISA still valid and can it be used for re-entry?

Regards,
Varun

[shervin143]

Employer can only withdraw the petition. The visa in the passport will remain valid until it expires or cancelled by the consulate. You can use that H1B visa with the new employer's H1B approval notice to travel.

Hi Shervin,

Thanks for your response. Regarding your comment "If you already have a valid H1B visa in the passport (even if it has different employer's name on it)", I have a question -
I have a VISA stamping in my passport with employer A, who has already withdrawn its petition. But when it was stamped, expiration date on it was of Sept 2016. My questions is does this VISA still valid and can it be used for re-entry?

Regards,
Varun