Urgent: OPT to H1B Transition, Laid Off

[irishballr]

Hi,

My H1B was filed (normal processing) on October 3rd and is still under "Initial Review". My F1-OPT expired on December 15, 2011. I got laid off yesterday, 12/20.

My ex-company is also working on stopping my H1-B processing. Can they do that?

I need guidance on what my next steps need to be on getting back to legal status?

Please help!

G

[kabkaba]

You are allowed to stay in the US or change status within 60 days of OPT end date. Since H1 petition is being withdrawn (Yes, they can do that. It is their petition) and since H1 cap is closed, another employer cannot file H1 for you. If you have the option of changing to H4 or some other status, you can do that within 60 days but you cannot work in the period. If nothing works out, you must leave the US within 60 days from OPT end date.

[irishballr]

You are allowed to stay in the US or change status within 60 days of OPT end date. Since H1 petition is being withdrawn (Yes, they can do that. It is their petition) and since H1 cap is closed, another employer cannot file H1 for you. If you have the option of changing to H4 or some other status, you can do that within 60 days but you cannot work in the period. If nothing works out, you must leave the US within 60 days from OPT end date.

Thank you for the prompt reply! I'm in the process of getting hold of an immigration lawyer but I thought I'd still ask.

If the company withdraws their petition, do they get the application money back from USCIS? I ask this because, my primary reason for lay off was due to poor money management on the company's part and they wanted to recoup the money they spent on me by cancelling my H1B petition. If they can't get the money back, I could at least request them to hold of withdrawing and the least get my H1B. Please clarify.

Is there a way to figure out if my H1 has been approved?

Thanks a lot for all this information!!

[shervin143]

If the application has been taken for processing then you will not get the money back. What you have paid is the processing fee and not the approval fee.

In order to check whether the H1B has been approved or not, get the receipt number from your employer and check the status online and check with your employer to see if they received the approval or decline notice.

Thank you for the prompt reply! I'm in the process of getting hold of an immigration lawyer but I thought I'd still ask.

If the company withdraws their petition, do they get the application money back from USCIS? I ask this because, my primary reason for lay off was due to poor money management on the company's part and they wanted to recoup the money they spent on me by cancelling my H1B petition. If they can't get the money back, I could at least request them to hold of withdrawing and the least get my H1B. Please clarify.

Is there a way to figure out if my H1 has been approved?

Thanks a lot for all this information!!

[kabkaba]

There will be no refund. But if they get an approval and give you a copy of the approval notice, you can get another employer to file H1 for you cap-exempt. They can withdraw the petition after it is approved.
However, any of the above does not make you in status. You must still leave or change status within 60 days after OPT end date.
I would suggest the following. Request the company to not withdraw the petition as it is not going to make any difference to them. Leave the US but get a copy of approval notice from them. Find another job and provide the employer with the above copy and they will file H1 for you. You can obtain H1 Visa and travel to US.

[irishballr]

There will be no refund. But if they get an approval and give you a copy of the approval notice, you can get another employer to file H1 for you cap-exempt. They can withdraw the petition after it is approved.
However, any of the above does not make you in status. You must still leave or change status within 60 days after OPT end date.
I would suggest the following. Request the company to not withdraw the petition as it is not going to make any difference to them. Leave the US but get a copy of approval notice from them. Find another job and provide the employer with the above copy and they will file H1 for you. You can obtain H1 Visa and travel to US.

Thank you. I've been trying to request my company to not withdraw but they still seem to not understand. It's an ongoing struggle.

Do I need to be on the company's payroll while my H1B is being processed? I have a hunch that this might be the issue that leads them wanting to withdraw my application. Will there be any future issues during visa transfer and stamping if I'm not in my ex-company's payroll?

Thanks for all your help!

[shervin143]

You don't have to join the employer until the H1B gets approved. Once the H1B gets approved, you need to be on their payroll. Explain them that they can send the revokation notice immediately upon receiving the H1B approval notice. Once the H1B gets approved with a new I-94, you need to be working and getting paid. Otherwise you will be considered as out of status. You can leave the country immediately upon receiving the H1B approval to avoid such issues. Then transfer the H1B to a different employer, get the H1B stamped and return back.

Thank you. I've been trying to request my company to not withdraw but they still seem to not understand. It's an ongoing struggle.

Do I need to be on the company's payroll while my H1B is being processed? I have a hunch that this might be the issue that leads them wanting to withdraw my application. Will there be any future issues during visa transfer and stamping if I'm not in my ex-company's payroll?

Thanks for all your help!

[irishballr]

You don't have to join the employer until the H1B gets approved. Once the H1B gets approved, you need to be on their payroll. Explain them that they can send the revokation notice immediately upon receiving the H1B approval notice. Once the H1B gets approved with a new I-94, you need to be working and getting paid. Otherwise you will be considered as out of status. You can leave the country immediately upon receiving the H1B approval to avoid such issues. Then transfer the H1B to a different employer, get the H1B stamped and return back.

Thanks Shervin. Let me clarify my situation.

I was working for company A on F1-OPT. They filed for my H1B while I was on OPT. My OPT expired on Dec 15, 2011. My H1B is still being processed but company A laid me off on December 20, 2011 and want to withdraw my petition. So technically I'm in the legal grey zone (post OPT 60-day time frame).

I've requested company A to NOT withdraw and complete my H1B approval. I even suggested premium processing. I was told by attorneys that I have 30 days to find another employer to transfer my H1B after my approval or leave the country and then return back once I have a new employer.

So my question specifically is, do I need to be in company A's payroll while my H1B is being processed even though I got laid off (technically, I won't be getting paid, just a dummy entry in the system until I get my H1B) or does that not matter for H1B processing?

Hope this clarifies my situation.

Thanks for your help!

[shervin143]

There is no such 30 day rule. You need to be in their payroll to maintain your legal H1B status and for a successful H1B transfer. If you have a copy of the H1B receipt notice, then any employer can file a transfer based on the pending H1B approval using the receipt notice. This can be easily handled by a good immigration attorney. Try this option before the employer revokes your H1B. Ask the new employer to file the transfer in premium. If you accept to pay the premium processing fee, any employer will accept.

Thanks Shervin. Let me clarify my situation.

I was working for company A on F1-OPT. They filed for my H1B while I was on OPT. My OPT expired on Dec 15, 2011. My H1B is still being processed but company A laid me off on December 20, 2011 and want to withdraw my petition. So technically I'm in the legal grey zone (post OPT 60-day time frame).

I've requested company A to NOT withdraw and complete my H1B approval. I even suggested premium processing. I was told by attorneys that I have 30 days to find another employer to transfer my H1B after my approval or leave the country and then return back once I have a new employer.

So my question specifically is, do I need to be in company A's payroll while my H1B is being processed even though I got laid off (technically, I won't be getting paid, just a dummy entry in the system until I get my H1B) or does that not matter for H1B processing?

Hope this clarifies my situation.

Thanks for your help!