Out of Status

 
  My L1A extension has been denied which is in appeal since August 2004. My I 140 is also in appeal since 2004 April. I am in USA and waiting for answer of appeal. Is there any other way to get status, by F1 or H1 or E visa. I had invested about $300000 in USA

  1. Please find a way by which you can get admission in some university, so that you can get F1 visa and thereby you become legal.
  2. Please talk to some consulting company wherein you can apply for H1. Please take an opinion of an immigration attorney on the status of your case since you can be in big trouble if your extension petition is denied.
  3. As regards E visa, we think the money which needs to be invested is substantially higher. We recommend that you talk to an investment specialist/persons who advise foreign nationals on investments in the US.


I got my H-1B stamped from the Mumbai Consulate in March end. I was expecting to travel in April first week. Hence, in the visa application form I had mentioned that I intend to travel within 15 days. On account of the slowdown, my employer asked me to wait till August. In August, I was asked to wait till January. I have heard that after the visa is stamped, one must enter the US within six months, failing which the visa gets cancelled automatically.

As we understand, your H-1B is valid till the date of expiry. When you travel in January, please carry adequate documentation like letters from your employer verifying the job is valid.


My fiancé is an H-1B holder. He is applying for a Green Card and should get the labour certification within the next three months. Our plan is to get married at the beginning of next year, so that I can apply for an H-4 visa and move to the US. Will I receive the green card with my husband? After one year of receipt of the labour certificate, can I work in the US? How should I apply for it?

Is it true that my husband's status will change after six months of the labour certificate's receipt and therewith my status will change? Will I be allowed to work?

At the time of marriage, your husband's visa status should be H-1B and not green card. Hence, we recommend that you get married while your husband is on H-1B visa status. Please get your H-4 visa immediately after marriage. Your husband's status will change only after his green card is approved. Then can you begin to work .


How many times can one apply for an H-1B? If my new employer has no choice but to apply for a new H-1B, and should I get the visa, I would have had two H-1Bs for a total of four years. At that point I am definitely going to school on an F-1 visa. However, when I am through with school, can I apply for an H-1B again? Do I have to leave the country?

You can apply for a visa any number of times but the total period of stay is 6 years.


I find a job with Company B within the stipulated time period. Company B applies for a transfer, but while the INS is processing the transfer requests, it decides it no longer wants me. If the transfer has not yet been approved, and I am able to find a job with Company C, can the third company apply for an H-1B transfer?

When Company B files for visa transfer, you can start working for company B. Based on that, Company C can apply for visa transfer. A good lawyer in the US can take care of almost everything.


If I lose my H-1B status, how long do I have before I leave the country. My current employer tells me 180 days. However, in the past, I have been told that the actual number is 60.

You have up to 60 days.


How many times can one transfer an H-1B visa and how often? If I find a job immediately with a company and I take it up because of the dire state of the economy and the need to preserve my status, can I shift companies once again on finding a better job? For how many months must I work for Company B? Would the transfer procedures be different?

One can transfer an H-1B any number of times. There is no minimum time period. You need to work for company B for a minimum period of one month to get a salary stub.


I just found your site and the answers are great. I was wondering if you could help me. I am currently on an H-1B with Company A, since January. Previously, I was on an F1 visa for eight years. I am about to lose my job on September 14, 2001. I would like to specify that I am not being laid off. I am in the process of looking for a new job. I am aware, I must find a new job before September 14, 2001 to set the transfer process in motion. I know everything will be fine if I find a job by September 14. But I am worried about the period beyond this deadline. I have the following five questions:

For how many days will my current company's H-1B be valid after September 14? If I find a job on September 24, will the new employer be able to file for an H-1B transfer or will he have to apply for a new H-1B on my behalf. I have been informed that the INS allows a10-day grace period, but I am not certain if this information is accurate. Further, my company tells me that the law is unclear about the day from which the INS starts counting the 10-day grace period - is it the day you leave the job, the day that the company informs the INS, the day that the INS opens the mail or the day the INS processes the documents?

In strict legal terms, you have a grace period of 10 days from the day you lose your job i.e. September 14th, provided the company informs the INS.

Currently, on account of the downturn, the INS is not enforcing the law strictly. The period for which you can stay without getting on the wrong side of the law is 30 - 60 days

Please try to work an agreement with your employer that you take 6 month no pay no benefits leave of absence. This will give you time to look for a job.


My company said that they are going to terminate my services. How long can I stay in the US legally? Some of my friends tell me that I can stay for an indefinite period of time, as long as I do not work illegally.

Legally, you can stay for no more than a period of 10 days. Please make an arrangement with your employer, wherein you apply for medical leave for three months. Make it clear to your employer that you do not want any salary or medical benefits. If the employer does not agree and decides to terminates your services, he needs to pay you the notice period salary and an air ticket to India.

Has your employer ever kept you on Bench without pay? Bench beyond a period of 30 days is illegal and if your employer is guilty of such an offence you could hint that you will sue him, if he fails to comply with your legitimate demands. I hope you understand that this would be the last resort.


I am in the US and my employer has terminated my services. I am currently holding a valid H-1B visa. I need to travel to Kenya. Can I use the current visa or will the immigration officer on my way back know that I have been fired and my visa has been revoked. If that is the case, is there any number that one can call to find if the visa has been revoked?

I strongly recommend that you do not travel till you are certain about your visa status. You can get any of friends who are working in other companies to call INS and check on your status.
 

I am working as a CTO for an Indore-based infotech company. A US employer sponsored me for an H-1B visa in February 99. My employer was, however, not in a position to get a single job for me. He did not pay my salary for six months. I, then, decided to return to India in August 99. In November 2000, I received an offer from another US company. My employer informed me that I could enter the US on the earlier H-1B visa. At the port of entry, at Atlanta, the Immigration Officer cancelled my H-1B and deported me to India.

Now, I have an approved H-1B with all the relevant papers. Can I return to the US, after being deported under Section 212(a)? The deportation has been recorded on my passport.

US immigration law does not permit aliens to enter the country to work for an employer on an H-1B visa sponsored by a different employer. The US Immigration Officer, at the port of entry, denied admission, as you had unwittingly violated the immigration laws of that country. In addition, the previous employer could have applied for cancellation of your H-1B visa.

Please ask the company, which processed your current H-1B, to check with their lawyer whether you can go for stamping. From the case details available, our lawyers are of the opinion that you could be debarred for a period of three years. But whether the law applies to you because of certain reasons such as non-payment of salaries etc remains to be seen. The best judge of your case is your new employer, who has applied and processed your H-1B visa. Does you employer know that you have been deported from the US?

 

I came to US on an F-1 visa and worked for company XYZ to complete Practical Training. The company applied for my H-1B visa in October 2001. My PT (EAD) expired on 9th February 2001. I decided to stay in the country, since I had my EAC number. The INS approved my H-1B on 5th March, 2001. Since the last one month, I have been working for XYZ. The company, however, has been unable to find any projects on which I could work. They have also failed to pay my salary.

The company has recently terminated my employment and has decided to notify the INS about cancellation of H-1B visa? Since I was not given even a month’s salary, the company says my H-1B is inactive. My F-1 visa is valid till 14th May 2001. Can you tell me whether I still have a valid F-1 Status? How soon must I leave the country? Can I apply for a new H-1B visa?

You can stay in the US, provided you are able to prove to INS that you are staying back on account of extraordinary circumstances. Our feeling is that your employer is pulling a fast one on you. If your employer notifies INS, it is incumbent on him to prove that he paid two months wages and your return air-ticket to India. Otherwise, your employer is liable to be blacklisted for unfair labour practices.

Please try to solve the issue amicably. Tell your employer that if he does not file for cancellation, you will not claim any damages. Please do not give anything in writing immediately. Consult a lawyer or send us the document your employer asks you to sign.

 

Thanks a lot for your reply. I have further concerns. I do understand that it is incumbent on the employer to pay salary to an H-1B employee. The company attorney, however, says that the INS grants a 60-day grace period to a company during which they need not pay the employee. Hence, prior to canceling the H-1B visa, the company need not give me two pay stubs. Besides, when I asked the company for the return fare to India, I was informed that since my H-1B was never active (not having received any pay on H-1B) the company need not pay the return fare. I asked the attorney to hand over my H-1B papers and the LCA documents but she refused, stating that the company does not want to activate the H-1B visa and is sending a notice for withdrawal of H-1B to the INS.

I spoke to certain INS attorneys. They opine that I am out of status because my F-1 status was converted to H-1B and now the company is filing for cancellation of H-1B visa. They suggest I leave the country as soon as possible. I also spoke to certain attorneys representing the Department of Labour. They say that the company has taken all steps to avoid legal hassles. The DOL attorneys have advised I could go ahead and apply for a fresh H-1B through another sponsor, as the INS takes time to act. What does AssureConsulting.com advice?

Have you got you H-1B visa in hand? I presume from your mail that you do not have your H-1B visa in hand. If you do not have the H-1B visa in hand, there is nothing you can do. The salary rule can be enforced only if you possess the H-1B papers.

Based on the new facts of the case, i.e., you do not have your H-1B in hand, we advise you to return to India since you are technically out of status. With you qualifications you will soon be able to find a job in Bangalore.
Please find whether the company has applied for cancellation of the H-1B. Do you have any documents, which prove the acknowledgement of the H-1B petition?

You are bound to face other complications, as your passport does not have the H-1B stamp. Please talk to the attorney and find out if you can stay back on the basis of your visa approval.

In your case, it will be difficult to apply for transfer the H-1B visa. The INS will reject the transfer request, if the company has applied for cancellation of visa

As for bench, it illegal to keep people on bench beyond a period of 30 days. Moreover, the grace period does not mean that the company need not pay salary.

To be on the safe side and to avoid complications at a later date, we recommend you return to India, work for 6 - 12 months in Bangalore or Hyderabad and find an ethical H-1B sponsor. This is the safest option, since you do not have your H-1B papers or any other documents with you. We can help you in your quest for jobs in India.

Should you need any further clarification, feel free to call us at 91 91-80-2552 9205/2552 9204/2550 0200.
 

I am working for a California-based employer for the last one-and-a-half year. The slowdown in the US economy and the spurt of layoffs by many companies has made the H-1B community very insecure. Will an H-1B immigrant have to return to India immediately if the employee decides to terminate his services?

According to the period of stay regulation: 8 C.F.R. 214.2(h)(13)(I)(13) Admission (I) General (A): " A beneficiary shall be admitted to the United States for the validity period of the petition, plus a period of 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition."

However, in practice the INS is known to be more lenient. But rather than being dependant on the generosity of the INS, we would suggest that you contact an immigration lawyer as application of law is contingent upon circumstances. Sometimes it may take a month or two before another job offer materialises and in this scenario your lawyer may advise you to file for consular approval and not fight the fact that you've overstayed, In most reasonable cases, the INS very often will grant the extension, especially if the person has been terminated through no fault of their own. However, we once again reiterate that you contact an immigration lawyer in case you receive a pink slip from your employer.

 

(Disclaimer: We claim no responsibility for the accuracy of the information. Application of the law can vary drastically according to the facts of a particular case, judge or State in USA. The FAQs are not meant to be specific legal advice. The answers must be viewed as general information and are no substitute for the services of a lawyer.)

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