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Questions about switching jobs at 4 th year completion of H1B

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  • Questions about switching jobs at 4 th year completion of H1B

    Hi,

    My current employer won't likely file for GC and I am the beginning of 5th year (Started Nov 2015)
    My visa has also expired and is under renewal.

    I am planning to switch to some other employer who is willing to file a GC but I need time to prepare.

    1. Do I have enough time remaining for a job switch in the next few months?

    2. I am leaning towards just going back to India, use my time there and come back when the extension is approved

    3. In case if I go back what happens to the extension? Will it get rejected cause I went back?

    4. Will my employer be able to respond in case of an RFE while I am in India?

    5. Can I look for employers , give interviews and get the H1 transferred while I am in India ?

  • #2
    1. Do I have enough time remaining for a job switch in the next few months?
    >>> Yes. Your PERM should be filed before the end of the 5th year. It will take at least 6 months to file the PERM from beginning the process. So plan accordingly.

    2. I am leaning towards just going back to India, use my time there and come back when the extension is approved
    >>> Ok.

    3. In case if I go back what happens to the extension? Will it get rejected cause I went back?
    >>> Extension of stay can get denied. H1B might get approved for consular process.

    4. Will my employer be able to respond in case of an RFE while I am in India?
    >>> Yes.

    5. Can I look for employers , give interviews and get the H1 transferred while I am in India ?
    >>> Yes.
    Not a legal advice. Use of this information is strictly at your own risk.

    Comment


    • #3
      Originally posted by shervin143 View Post
      In case if I go back what happens to the extension? Will it get rejected cause I went back?
      >>> Extension of stay can get denied. H1B might get approved for consular process.
      Thanks so much for your insight shervin
      I didn't quite understand this. Wouldn't it be the same case if the extension was approved and I went back to India for vacation. I would still have to get the visa renewed and go through the interview process. Did you mean that by 'consular process'

      So, once I return to India, I have effectively quit with the US branch and returned to the Indian main office. Technically, I will no longer be working for the client.
      Now there are two possibilities, please let me know if my understanding is correct:
      1. Extension of stay gets approved, I go through the interview process to get the new visa filed and return back to same client

      2. Extension of stay gets denied, if company files new application for same/different location/client after a few months, will I my application be subject to the cap lottery?

      Comment


      • #4
        I didn't quite understand this. Wouldn't it be the same case if the extension was approved and I went back to India for vacation. I would still have to get the visa renewed and go through the interview process. Did you mean that by 'consular process'
        >>> When you are already in U.S in H1B status and if the employer files an extension of stay (when the previous H1B was about to expire), the H1B extension petition when approved will come with a new I-94 attached to the approval notice. Since you I-94 gets extended, it is called extension of stay. You don't need a valid visa to stay in the country. Visa is only an entry document to U.S. If you have a valid I-94, that allows you to legally stay in U.S. But if you leave the country while the extension is under process or if the H1B filed while you are outside U.S, the H1B petition will get approved for consular process (with a new I-94 attached). Which means, you can get a new I-94 associated to that petition only at the POE. To get to POE, you will need a valid H1B visa stamped in your passport. In your case, since you will anyhow need to get the visa stamped to return, leaving the country in the middle of the extension process will have no impact. If an RFE is issued, then the employer will need to respond back stating that you are no longer in the country, but would like to proceed with the process by converting it to CP. If by mistake the extension gets approved (with a new I-94), then you will need to return it back to USCIS.

        So, once I return to India, I have effectively quit with the US branch and returned to the Indian main office. Technically, I will no longer be working for the client.
        Now there are two possibilities, please let me know if my understanding is correct:
        1. Extension of stay gets approved, I go through the interview process to get the new visa filed and return back to same client
        >>> You can do that once you have the H1B approved.

        2. Extension of stay gets denied, if company files new application for same/different location/client after a few months, will I my application be subject to the cap lottery?
        >>> You will not be subjected to CAP. The current employer or any new employer can file a new petition using the CAP from your previous H1B approval notice by requesting an immediate start date.
        Not a legal advice. Use of this information is strictly at your own risk.

        Comment


        • #5
          If an RFE is issued, then the employer will need to respond back stating that you are no longer in the country, but would like to proceed with the process by converting it to CP. If by mistake the extension gets approved (with a new I-94), then you will need to return it back to USCIS.
          1. Extension of stay gets approved, I go through the interview process to get the new visa filed and return back to same client
          >>> You can do that once you have the H1B approved.

          vortexmak: Ok, so if an RFE is received, the employer can get it converted to consular processing. If the extension still gets approved, then they would need to return it back
          If no RFE is received and the extension gets approved, the company does not need to return it and I can return to the same client
          Is my understanding correct? Sorry, I'm a bit slow today

          2. Extension of stay gets denied, if company files new application for same/different location/client after a few months, will I my application be subject to the cap lottery?
          >>> You will not be subjected to CAP. The current employer or any new employer can file a new petition using the CAP from your previous H1B approval notice by requesting an immediate start date.

          vortexmak: Oh, so even a new employer can file a petition not based on cap from India? Is there a time limit by which a no-CAP petition can be filed?

          Thank you again for answering my queries patiently

          Comment


          • #6
            Ok, so if an RFE is received, the employer can get it converted to consular processing.
            >>> If an RFE is issued especially for this purpose (Employee leaving the country while the petition is filed with EOS), they will have to respond back saying they would like to convert it to CP. The employer / attorney will know how to handle that.

            If the extension still gets approved, then they would need to return it back
            >>> If the extension is approved with a new I-94 when you are outside U.S, then you have to return that I-94 (not the approval notice, just the I-94). Check the below link.
            https://www.immihelp.com/returning-u...4-form-to-cbp/

            If no RFE is received and the extension gets approved, the company does not need to return it and I can return to the same client
            >>> You still need to return the I-94. You can use the approval notice to go for visa stamping and to re-enter U.S.

            Oh, so even a new employer can file a petition not based on cap from India? Is there a time limit by which a no-CAP petition can be filed?
            >>> H1B CAP is valid for 6 years. You can file a petition anytime within the 6 year limit as long a syou haven't utilized all 6 years in that H1B CAP.
            Not a legal advice. Use of this information is strictly at your own risk.

            Comment


            • #7
              Originally posted by shervin143 View Post
              >>> If the extension is approved with a new I-94 when you are outside U.S, then you have to return that I-94 (not the approval notice, just the I-94). Check the below link.
              https://www.immihelp.com/returning-u...4-form-to-cbp/
              Now that there is no physical I-94 card issued only a number.
              How does one go about this?

              Comment


              • #8
                What are you talking about? There is no physical I-94 only when you enter at the POE. Petition filed while the person is inside U.S (and continue to be inside U.S during the processing time) will come with a new I-94 attached to the approval notice.

                Originally posted by vortexmak View Post
                Now that there is no physical I-94 card issued only a number.
                How does one go about this?
                Not a legal advice. Use of this information is strictly at your own risk.

                Comment


                • #9
                  Originally posted by shervin143 View Post
                  What are you talking about? There is no physical I-94 only when you enter at the POE. Petition filed while the person is inside U.S (and continue to be inside U.S during the processing time) will come with a new I-94 attached to the approval notice.
                  You're right, What I meant was the white card that gets attached to your passport

                  Comment


                  • #10
                    All that you need to do is, return the I-94 card that comes with your approval notice (if the approval comes with a new I-94) to the address that is mentioned in link that I provided you before. You do not have to worry about I-94 that is issued at POE (One that is online when you entered U.S through POE).

                    Originally posted by vortexmak View Post
                    You're right, What I meant was the white card that gets attached to your passport
                    Not a legal advice. Use of this information is strictly at your own risk.

                    Comment


                    • #11
                      Originally posted by shervin143 View Post
                      All that you need to do is, return the I-94 card that comes with your approval notice (if the approval comes with a new I-94) to the address that is mentioned in link that I provided you before. You do not have to worry about I-94 that is issued at POE (One that is online when you entered U.S through POE).
                      Thank you so much for all the info Shervin

                      Comment


                      • #12
                        Hi shervin,

                        Another quick question that came up.
                        Do I need to have been with a company for a year before they file the PERM application so that USCIS doesn't deny the application?

                        Comment


                        • #13
                          There is no such requirement. GC is for future employment.

                          Originally posted by vortexmak View Post
                          Hi shervin,

                          Another quick question that came up.
                          Do I need to have been with a company for a year before they file the PERM application so that USCIS doesn't deny the application?
                          Not a legal advice. Use of this information is strictly at your own risk.

                          Comment


                          • #14
                            Hi Shervin,

                            Another one in the same thread. My H1B is expired and currently under extension since two months and I have only received the acknowledgement from USCIS.
                            - Is it possible to switch to another company while visa is under extension ? i.e. H1B transfer

                            Also, if a transfer is initiated while visa is under extension and I switch with just the transfer receipt (as is the norm)
                            - is it possible for my old company to withdraw the extension application ?
                            - If yes, will my transfer application also be rejected?

                            Comment

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