Advise needed on my situation!

[globalbimmers]

Hello Guys,

I had a couple of questions pertaining to my situation on whether I should travel or not and use up my PTO (company paid holidays) and travel to India while my H1 transfer petition is pending.

The situation is as below:

I am currently working for Company A and H1 Visa will expire in Sept 2017.

Company A filed for my PERM in Feb 2015 however it received an Audit in Oct 2015 and the lawyer has responded to the PERM Audit.

I just recently interviewed for Company B and they offered me a full time job and willing to transfer my H1 visa and begin a new PERM application within 6 months of employment.

My question is, is it safe to take my PTO vacation (I have almost 11 days accumulated till date and they expire if i do not use them) and travel to India without notifying my present Employer A and then come back on Company A's visa and enter US and then put down my papers and resign?

All this will happen while my H1 transfer process is underway and I would have not officially resigned from my present job with Employer A.

Any advise is highly appreciated.

Thanks!

[shervin143]

Are you planning to return back using Company A's petition or company B's petition? Are you planning to serve the notice period after returning back (meaning, are you planning to work for company A for a week or two)?

[globalbimmers]

Are you planning to return back using Company A's petition or company B's petition? Are yu planning to server the notice period after returning back (meaning, are you planning to work for company A for a week or two)?

Hi,

Thanks for the reply and sorry for the multiple questions within the thread.

Yes, I am planning to return back on Company A's petition and yes I will serve the notice period after I am back from India (this is the time when i will put down my papers as well.) The H1 transfer process will be in place while I am in India.

The thing that worries me is that Company A has filed for my PERM and it received an Audit in October 2015 and a response has been submitted by Employer A.

Will this situation jeopardize my future PERM by company B that will be filed within 6 months of employment?

[shervin143]

NO issues with your GC process as Company B will anyhow need to restart the process right from the scratch. The problem is, if you leave the country while the transfer is in progress, then transfer might get denied (H1B might get approved for consular process - approval without a new I-94).

If you return back using Company A petition while Company B's petition already got approved while you were outside U.S, then you cannot begin working for Company B unless they file the transfer again. Because your latest I-94 that you will receive at the POE will be associated to Company A. Unless another transfer is filed, you won't get an I-94 associated with Company B (The latest I-94 takes precedence) to work for them.

If you return back using Company A's petition while company B's petition is still pending and upon your return if Company B's petition gets approved with a new I-94, then you can begin working for company B. But the chances of that is less since you left the country while the petition is under progress. If company B's petition gets approved with a new I-94, then you cannot work for company B unless you leave the country and return back on Company B's approval notice (which will get you a new I-94 at the POE associated with Company B) or Company B need to file a transfer again.

Hi,

Thanks for the reply and sorry for the multiple questions within the thread.

Yes, I am planning to return back on Company A's petition and yes I will serve the notice period after I am back from India (this is the time when i will put down my papers as well.) The H1 transfer process will be in place while I am in India.

The thing that worries me is that Company A has filed for my PERM and it received an Audit in October 2015 and a response has been submitted by Employer A.

Will this situation jeopardize my future PERM by company B that will be filed within 6 months of employment?

[globalbimmers]

NO issues with your GC process as Company B will anyhow need to restart the process right from the scratch. The problem is, if you leave the country while the transfer is in progress, then transfer might get denied (H1B might get approved for consular process - approval without a new I-94).

If you return back using Company A petition while Company B's petition already got approved while you were outside U.S, then you cannot begin working for Company B unless they file the transfer again. Because your latest I-94 that you will receive at the POE will be associated to Company A. Unless another transfer is filed, you won't get an I-94 associated with Company B (The latest I-94 takes precedence) to work for them.

If you return back using Company A's petition while company B's petition is still pending and upon your return if Company B's petition gets approved with a new I-94, then you can begin working for company B. But the chances of that is less since you left the country while the petition is under progress. If company B's petition gets approved with a new I-94, then you cannot work for company B unless you leave the country and return back on Company B's approval notice (which will get you a new I-94 at the POE associated with Company B) or Company B need to file a transfer again.

Thanks for replying shervin143, I have actually cancelled my plans for India trip since i discussed with my HR that my accrued PTO time will be reimbursed in case if i leave the organization as per my salaried hourly rate. So i guess, that solves the problem of remaining PTO as well.

One last question i have regarding the new future PERM that will be sponsored by Company B is that when this is actually filed will the department of labor (DOL) again place my PERM in Audit because of the Audit that i had received for my initial PERM with Company A?

Thanks!

[shervin143]

One last question i have regarding the new future PERM that will be sponsored by Company B is that when this is actually filed will the department of labor (DOL) again place my PERM in Audit because of the Audit that i had received for my initial PERM with Company A?
>>> That totally depends on why your case went into audit. If this is a random audit (Usually happens when the employer is a consultancy company or if the company is small), then it will have no impact on your future PERM with company B.

[globalbimmers]

Thanks for replying shervin143, I have actually cancelled my plans for India trip since i discussed with my HR that my accrued PTO time will be reimbursed in case if i leave the organization as per my salaried hourly rate. So i guess, that solves the problem of remaining PTO as well.

One last question i have regarding the new future PERM that will be sponsored by Company B is that when this is actually filed will the department of labor (DOL) again place my PERM in Audit because of the Audit that i had received for my initial PERM with Company A?

Thanks!

Hi Shervin,

Yes, The Audit was a random audit and my company's attorney mentioned the reason of Integrity check which is often done by DOL on a random basis.

My PERM was filed in EB3 and the company is huge (among the Fortune 50) in the U.S.

Do you think the reason maybe something else or may have been truly random for my PERM to receive an Audit?

[shervin143]

A company of that size might have got a lot of PERM approved in the past. so, it could most likely be a random audit.

Hi Shervin,

Yes, The Audit was a random audit and my company's attorney mentioned the reason of Integrity check which is often done by DOL on a random basis.

My PERM was filed in EB3 and the company is huge (among the Fortune 50) in the U.S.

Do you think the reason maybe something else or may have been truly random for my PERM to receive an Audit?