H1B Visa Transfer

**H1B Visa Transfer**

Hi,

Please help me with my H1B Visa Transfer:

I was laid off before I got a chance to find a second employer. There is a one-month gap between my jobs. An immigration officer called my attorney because he received a written notice from my former employer, indicating that my H1B was already withdrawn on the day I got laid off. The officer later sent a RFE to my attorney requiring for proof of employment and payrolls to demonstrate my valid status during the gap. I don't know how to respond to the RFE since I don't have required documents. Will you please tell me what to do next? Thank you in advance.

发布人: Mrs LA 发布于: 2008/03/26, 8:56 pm

You can reference the following article, it may help:

Terminated H1B Workers : FAQs

On December 14, 2001, we published a MurthyBulletin article that covered issues of termination affecting H1B employers and employees, entitled, Issues Arising from Termination of H1B Employees. As a follow-up to that article, we thought it useful to present some responses to frequently asked questions (FAQs) by H1B employees in a softening software economy when facing lay-offs or terminations. These questions have been compiled based on those often posed to us at The Law Office of Sheela Murthy via phone, eMail, and the MurthyChat. We hope that the outline of the issues presented will benefit our MurthyBulletin and MurthyDotCom readers, some of whom may unfortunately be faced with the termination of employment either for themselves or their family members and business colleagues.

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Q1. I was laid off a month ago and my company has informed me that they sent INS a letter revoking my H1B petition. What happens if I find another H1B employer in the meantime?

A. The INS has typically been taking several months to process H1B revocation notices, which means that, as a practical matter, the revocation of the H1B petition may not appear in the INS system for several months. However, this is merely a general statement and not official INS policy. One should therefore make efforts to find another job as soon as possible and have the new employer sponsor the H1B employee for the H1B petition at the earliest opportunity. One may encounter problems without the availability of current pay stubs as proof of continuing, valid H1B status. One may not be able to obtain an H1B extension of stay and may be required to travel abroad to obtain a new H1B visa or, at the very least, obtain a new I-94 card with H1B status upon re-entry to the U.S.

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Q2. Do I still qualify for H1B portability if I have changed to a different status?

A. This is a gray area where the law is not entirely clear. The portability provisions under the American Competitiveness in the Twenty-First Century Act (AC21) of October 2000 state that a nonimmigrant who was previously issued an H1B visa or provided H1B nonimmigrant status may begin working for a new H1B employer as soon as the new employer files a "nonfrivolous" H1B petition on the H1B beneficiary's behalf. It does not state that the beneficiary had to be in H1B status at the time the new H1B petition was filed. The INS has not fully addressed the scope of these provisions. The most recent INS memo on the subject, dated June 19, 2001, states that the INS or Service is formulating regulations to address the scope of the portability provisions. The memo states, "On one hand, Congress does not appear to have limited portability benefits to only those who are working lawfully in H1B status at the time a new employer files a new H1B petition on their behalf. Nor, on the other hand, does Congress appear to have extended portability benefits to any alien who has ever held H1B status, no matter how long ago or what the alien's current status in the U.S." The Service stated in the memo that they expected to propose a rule on the subject and possibly a 60-day time frame may be a possible solution. To date, there is no rule. Therefore, arguably, a person could still enjoy portability benefits after having changed from H1B to another nonimmigrant status. However, it is generally safe to err on the side of caution and not engage in any employment that could later be characterized as unauthorized. Therefore, it appears that it would be safest to commence employment only upon approval of the later H-1 petition, in these scenarios. With the availability of premium processing which the INS generally decides within 15 days, the wait should not be extremely long.

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Q3. I have an H1B visa for full-time work and a concurrent part-time H1B for another job. I have been laid off from the full-time job and want to revert to the part-time job. I haven’t been working for the part-time employer since I have been in the U.S., which has been 1 year now. Can I go back to the part-time job now?

A. According to the current U.S. Department of Labor interpretation of the regulations, one cannot simply return to a "dormant" H-1 approval with a prior or different employer. Employers are required to pay H1B employees the prevailing wage salary as stated on the H1B petition unless the H1B employee is terminated. Therefore, the part-time employer was required to either start the H1B employee and pay the wage stated on the H1B petition for part time employment or terminate the H1B employee and notify the INS of the termination of employment. If the prior H1B employer decides to re-hire an H1B employee based on having an H1B petition approval for that employee, the U.S. Department of Labor takes the position that the employer is responsible for wages from the beginning of the H1B petition approval for part-time employment, even if the employee never worked for the prior H1B employer. This raises difficult issues and potential problems for both the employer and employee. Usually, what is done in this instance is that the second employer may simply choose to file a new H1B petition.
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Q4. Can I apply for a status other than H1B if I am being laid off?

A. In certain circumstances, an H1B employee may be able to apply for another status. There are a number of different options. Depending on a person's individual circumstances, one may qualify for one of these categories.

Viable options may include F-1 (student status), H-4 or F-2 (dependent of an H1B or F-1 spouse, respectively) and B-2 (tourist) or B-1 (business status). While such a change could help one stay in status, it is important to ensure that the eligibility criteria are met for whichever status one opts. INS has confirmed that a laid-off H1B worker may apply for a visitor’s visa in order to look for employment. However, a person who is on a status other than an H1B may no longer be able to enjoy the benefits of H1B portability and will be subject to the H-1 cap. This may be the only available option if the applicant's I-94 is expiring, but should not be done without a full understanding of the legal and other consequences.

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Q5. I have recently been laid off and was told that my employer is obligated to continue paying me until INS revokes the petition. Is this true?

A. According to Department of Labor (DOL) regulations, an employer must continue to pay the H1B worker until there is a “bona fide” termination of the employment relationship. It is not clear exactly what constitutes a “bona fide termination,” but one viewpoint is that termination occurs on the day the employer notifies the H1B employee that the position has been terminated and all obligations for payment of wages terminate on the date of employment termination. The other viewpoint is that a termination only occurs when the H1B employer notifies the INS of the termination, the H1B petition is cancelled and the employer complies with the return airfare obligation for the employee. Please note that INS does not expressly spell out the options and therefore this is an unclear area of immigration law. As it can take several months for the INS to act on a revocation request, employers generally do not continue to pay wages until INS takes action. The employer usually notifies the employee of the termination date and discontinues any salary or other payments at that time. Thereafter, they notify INS.

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Q6. If I apply for a change of status, and in the meanwhile find a new employer, can I revert to H1B again?

A. It is generally possible to apply for and obtain H1B approval when one has already applied for a change in status and this status is still pending. The last status approved is the one that governs. Therefore, it is important to take steps necessary to assure that the H-1 will be the last application approved. This may require withdrawal of any previously filed petitions / applications. However, this should be carefully reviewed to assure that a withdrawal does not result in an "out of status" period.

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Q7. I was laid off and found a new employer to sponsor me for an extension of my H1B status. I am concerned that INS will not approve the extension of stay request and I will have to travel abroad to apply for my new H1B visa. I have heard that if “extraordinary circumstances” exist, INS has discretion to grant an extension of stay to a person who is out of status. What constitutes “extraordinary circumstances?”

A. In recent discussions with representatives of the American Immigration Lawyers Association in various liaison meetings, the INS has stated that being laid off is not considered an “extraordinary” circumstance and therefore it will not issue a blanket forgiveness of status violations for laid-off temporary workers. Instead, INS will continue to consider each case on its individual merits. This means that there is always a risk that the INS could deny the extension of the H1B status and require the H1B employee to depart the U.S. on short notice.

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Q8. Will it help my status if my employer keeps me on the payroll, although I am terminated and no longer being paid?

A. It is not likely that INS will consider a person as being “in status” when s/he is not being paid. This is a risky option to pursue, both for the H1B employee / beneficiary and the H1B-sponsoring company. When a person applies for either an extension of the H1B status with the H1B employer or for a change of status, that person will be expected to be able to produce recent pay stubs to the INS to show maintenance of lawful non-immigrant status. Without these, the INS is not likely to regard the H1B beneficiary as having maintained valid legal status.

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Q9. If my employer agrees in the severance package to pay me for several months after I am laid off, am I nonetheless considered terminated and therefore “out of status” during that period?

A. According to INS, a person in H1B status is considered out of status from the day his/her employment is terminated by the employer. Whether one may still be receiving a paycheck from the employer is irrelevant. However, it could be useful to keep in mind that INS only requires pay stubs as proof of valid, legal H1B status when according the extension of status or the change of status on a new H-1 petition.

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Q10. Can I still file for an H1B transfer 4 months from the time I was laid off? I do not have recent pay stubs.

A. Technically, the INS appears to take the position that H1B status ends upon termination of the H1B position. INS regulations prohibit the change, extension, or amendment of status for individuals who are out of status. The exception to this is a regulation that allows the INS to exercise discretion and overlook minor gaps in status when making decisions regarding such cases. If the gap in status is too long, the employer may be able to submit a petition to the INS to sponsor the H1B employee for a new H1B, but the INS is unlikely to approve both the H1B petition and the H1B extension of stay. In these instances, often the INS will approve the H-1 petition but will not attach an I-94 card to the approval notice. This would probably require the H1B employee to depart the U.S., possibly make an application for an H1B visa at a U.S. Consulate abroad (generally, if the visa stamp in the passport had expired), and obtain a new I-94 card granting H1B status upon re-entry. Of course, one must be mindful not to accumulate 180 days of time out of status as this will then bar reentry for three years or ten years, depending on the length of time one is considered to have accrued unlawful presence in the U.S.

[Source]http://www.murthy.com/news/UDtermh1.html

参考一下
http://www.chineseinla.com/f/page_viewtopic/t_8086.html

**Thanks so much for your details explanations**

Really appreciate your generousity. I have contacted Attorney Murthy for help. Hopes everything goes fine. Thanks again. Surprised