H1B Transfer with gap in employment

[ethkong]

Hi - I was wondering if you have advice for my situation. I have H1B visa approval but I lost my job in June 2016. I applied to change my status to B2 shortly after, but I still haven't heard back on the outcome of my application yet on this. I have only just found new employment and have an offer letter, with a start date in February 2017. Will it still be possible to transfer my H1B even though there has been a 7 month gap in employment? In addition, will I be able to add the 7 months that I haven't worked to the length of the visa (it is currently due to expire in August 2018)? Thank you so much!

[scientist2016]

Depends. Have you been in the US these 7 months? If yes, then you were out of status and illegal. So the best you can hope for is extension with consular processing, in which case you have to go out of the country and go to a consulate to get your visa stamped. But the USCIS may also reject your application given the 7 month out of H1 status and lack of paystubs for the recent 3 periods.

[ethkong]

I remained in the US for 6 months after I was laid off, and then left for 1 month. I've just re-entered the US under the ESTA visa waiver program. Does that make a difference?

Thank you for your opinion.

Depends. Have you been in the US these 7 months? If yes, then you were out of status and illegal. So the best you can hope for is extension with consular processing, in which case you have to go out of the country and go to a consulate to get your visa stamped. But the USCIS may also reject your application given the 7 month out of H1 status and lack of paystubs for the recent 3 periods.

[scientist2016]

In that case you might be better off getting your new employer to file a H1 under the cap exempt scenario (based on your previous H1 time that was unused) rather than trying to transfer.

[ethkong]

In that case you might be better off getting your new employer to file a H1 under the cap exempt scenario (based on your previous H1 time that was unused) rather than trying to transfer.

Thank you, very helpful!

[ethkong]

In that case you might be better off getting your new employer to file a H1 under the cap exempt scenario (based on your previous H1 time that was unused) rather than trying to transfer.

One more question - with a new H1 petition under the cap exempt / not subject to cap scenario, do I have to wait for the approval before I can start work? Or can I start work once the petition is submitted? I recently re-entered the US under the ESTA visa waiver program. Thanks again for any advice you can share.