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Possible to leave and immediately re-enter as B1/B2 after being laid off?

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  • Possible to leave and immediately re-enter as B1/B2 after being laid off?

    I was on H1b for a couple of years, but my company hasn't been able to pay my salary for a while. Ever since then I've been out of status. I now realize that I should have changed my status to B1/B2 immediately but I wasn't informed and didn't manage to do so.

    Now I am searching for a new job in the U.S., and it turns out that I can't transfer my H1b even if I find a job because I can't show my last couple of months' pay stub. I can't even change my status to B1/B2 now since I've been out of status for several months and it's too late for that. Luckily this was not reported to USCIS so I'm not officially "unemployed". I was advised to leave and re-enter U.S. if I want to get out of this situation.

    I am aware that it is possible to leave and re-enter once I have a job offer. However, what if the job I'm interviewing for requires that I do an on-site interview? How can I re-enter before getting a job offer?

    In the same vein, can I leave--for example to Canada or Mexico (or in the worst case my own country)--and *immediately* re-enter as B1/B2 (I already have a multiple visit b1/b2 visa valid until 2018) and continue searching for a job? The type of jobs I'm searching for (silicon valley tech startups) mostly prefer to have an on-site interview, and I think I will be able to get the job much quicker if I can search for jobs here.

  • #2
    Your employer is required to pay you as per LCA. You can complain to DOL and transfer is then possible using the complaint receipt.

    Traveling and returning in B1/B2 status is also possible. The risks in that case being being denied entry because you don't have a B1/B2 like purpose of visit, impact of out of status period on future petitions and changing status from B1/B2 to H1 is also discouraged.
    This is my opinion and not legal advice.

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    • #3
      Originally posted by kabkaba View Post
      Your employer is required to pay you as per LCA. You can complain to DOL and transfer is then possible using the complaint receipt.

      Traveling and returning in B1/B2 status is also possible. The risks in that case being being denied entry because you don't have a B1/B2 like purpose of visit, impact of out of status period on future petitions and changing status from B1/B2 to H1 is also discouraged.
      Thank you. Regarding the being denied case, could you tell me how high you think the risk is? Is this a risk as in "it doesn't happen often but there's always a chance that it could", or "this happens quite often and therefore is risky". I thought there wouldn't be a problem if I originally came in for a tourism purpose but ended up getting a job. Perhaps to be cleaner, I could leave and re-enter as H1B status once I get a job offer, instead of changing the status from B1/B2 to H1B. What do you think?

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      • #4
        Originally posted by zuberi View Post
        Thank you. Regarding the being denied case, could you tell me how high you think the risk is? Is this a risk as in "it doesn't happen often but there's always a chance that it could", or "this happens quite often and therefore is risky". I thought there wouldn't be a problem if I originally came in for a tourism purpose but ended up getting a job. Perhaps to be cleaner, I could leave and re-enter as H1B status once I get a job offer, instead of changing the status from B1/B2 to H1B. What do you think?
        I have no idea about the statistics. Even if you are allowed to enter, the out of status period can still come up in future applications.
        Leaving and returning rather than changing status is fine.
        It will be best to consult an experienced attorney of your own to avoid all complications and understand the impacts.
        This is my opinion and not legal advice.

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