Workers in H-1B Visa and Layoffs

Due to recession in the U.S., many companies are laying off their workers. Some employees employed in U.S. companies under H-1B visa are also affected.

Nagesh is one such H-1B worker and he had posted the following comment in the post, H-1B Visa Questions and Answers.

Nagesh Asks

Hi,
I have a situation.
I was employed with Company A with whom my H-1B started in Oct. ’07 and I went to India and got H-1B stamped on passport. My H-1B was valid until Oct. 2010.
In last week of Oct. ’08, Company A laid me off and I found opportunity to work with Company B on Nov. 4, 2008.
An immigration attorney (not belonging to the company) filed for H-1B transfer which the USCIS received on Nov 10.
After starting to work for Company B for a month, both the employer and lawyer suddenly realized that I was not supposed to work until the petition has been completely approved and that I was accumulating illegal working days, so they terminated me from payroll.
The petition is still under process with USCIS.
The immigration attorney says that once the petition is approved, I will have to travel to Mexico crossing the border at Tijuana and then re-enter USA with the new I-797 and employment letter such that it would bring me back on status.
The attorney says that I need not go to USCIS in Mexico for another visa interview as my passport has already been stamped for H-1B from Oct. 2007 – Oct. 2010.

Questions:
Is it necessary to travel outside the U.S. as the attorney suggested to bring me back on status? It seems to me like a regular visa transfer from Company A to Company B.
Is there a chance that I get stuck at the Tijuana border and they ask me to go to USCIS in Mexico or deport me back to India?
If yes for travel, do we have to do this every time I change companies?
Please explain.

H-1B Visa and Laid Off – Answer

I did a bit of researching to find the exact answer to your situation. Here’s what I found @MurthyDotCom:

The USCIS typically takes several months to process H-1B revocation notices.

The revocation does not prevent the approval of an H-1B by a new employer, although the ability to extend H-1B status in the U.S. is affected by whether or not the individual is maintaining H-1B status at the time the new employer files its H-1B petition.

As a practical matter, the revocation of the H-1B may not appear in the USCIS system immediately. However, this is a matter of procedure and not official policy.

It is necessary to make efforts to find another job as soon as possible and have the new employer sponsor another H-1B promptly.

The USCIS will review the proof of status submitted with the new employer’s case. This is normally in the form of current pay stubs.

If there are no current pay stubs as proof of continuing status, it may not be possible to obtain an extension of stay (reflected in an approval notice with an I-94 at the bottom).

Thus, the new employer’s H-1B petition may be approved, but with an instruction to depart the U.S. and request for a visa at a U.S. consulate.

In this event, it would be necessary to travel abroad, obtain a new H-1B visa at a U.S. consulate (if needed), and obtain a new I-94 card at the port of entry.

If you are laid off from a job with H-1B visa, you can find answers to other frequently asked questions like:

  1. I am in H-1B status, but I also filed my I-485 and received an Employment Authorization Document (EAD). Do I need to maintain H-1B status, or can I just rely upon my EAD?
  2. I have an H-1B petition with Company B and was just laid off. I have an H-1B petition through Company A, where I used to work, which has not expired. Company A would like me to come back to work for them. They did not revoke the H-1B petition when I left. Can I go back to work for Company A?
  3. If I am being laid off, can I apply for some other status?
  4. If I apply to change my status, is it then possible to revert to H-1B if I find a new employer?
  5. What happens if I am terminated but the company keeps me on as an employee without pay?
  6. If the company gives me a severance package that includes receiving pay for two months or more after I am laid off, am I still considered terminated and therefore “out of status” during those months?
  7. Can I still file for an H-1B “transfer” one month from the time I was laid off? What about four months from the time I was laid off? I do not have recent pay stubs.

1 Comment

  1. Arasu on January 2, 2009 at 11:35 PM

    I am puzzled by the action of the Attorney and Company B. Nagesh is allowed to start work immediately for Company B once the H1B petition has been filed by Company B. There is no need to wait for approval. Approval sometimes takes months, so USCIS allows the H1B holder to start work immediately with his new employer. For example see this link:
    http://www.inteconlaw.com/h-1b_visa.htm#top
    Look under the heading "Can an H-1B worker go to work for a new employer, and if so when?"

    In fact, now that Nagesh is not on Company B's payroll, he will be out of status. So I find it difficult to understand the rationale of the Attorney's advice to Company B.

    As for leaving the country to get the visa stamped etc, it will only be necessary if USCIS do not give Nagesh a new I-94 card when his H1B transfer is approved. From the information Nagesh has given, I see no reason why USCIS will deny him a new I-94, since he had maintained status at the time company B filed his papers .

    Also see the answer to Q4 in this link:
    http://immigration.knowitallmall.com/library/week

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