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Judith
Judith, Immigration Lawyer
Category: Immigration Law
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Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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The I-94 of my last H 1B visa expires June 30, 2013. However

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The I-94 of my last H 1B visa expires June 30, 2013. However my employer terminated my job on April 10, 2013, after which I files for H-4 visa, which has not been approved yet.
So currently I am out of status, till my H4 visa gets accepted (which will take its own time)
In the meanwhile, I have got a job offer, but the paperwork processing might take some time. Do I need to return back to my home country to get my new H 1B visa?
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Hello. Thank you for using our service. All I ask is that before you sign off, you rate me positively. If you are inclined to use the "poor service" or "bad service" options, please ask follow-up questions first and give me a chance. Sometimes the law doesn't have a good solution, but I will try hard to find it if it is available.


I may have some bad news for you. What do you mean AFTER you were terminated, you filed for H-4? How much after? Do you have paycheck stubs to cover you from the point that you were "terminated" until the point that you filed the I-539?
Customer: replied 1 year ago.

I got terminated on April 10th, and filled in the I-539 on April 14th; the I-797C receipt says USCIS received my application on APril 18th 2013

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.
Just because they accepted it does not mean that they will approve it. If you do not have paycheck stubs to cover you for that time, they will deny it. There can be no gap. Even a one day gap means that you are out of status and will be denied. The only way for you to apply for H-1B now without leaving the U.S. would be IF they approve the I-539. The safer thing for you to do would be to leave the U.S. now and get the H-1B from outside of the U.S. I know it is inconvenient and not what you wanted to hear, but it is the only way to be safe since they don't like any gaps at all and they are being very strict with this because of the poor economy in the U.S. and so many U.S. workers unemployed. They want nothing better than to get you off of your H-1B status and free up a job for a U.S. worker. You can also get your H-4 from outside of the U.S. as well.

Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/. Thank you!

Customer: replied 1 year ago.

I have my paystubs till April 18th.


However till my H-4 gets approved I am still out of status.



The question is can my new H 1B processing start now, while I am still in USA, out of status. Or do I need to wait for the H4 approval. Or do I need to return back to my home country to start the processing of the new H 1B visa?

Customer: replied 1 year ago.
Relist: Answer quality.
Expert:  Judith replied 1 year ago.
Hello,my name is Judith. Thank you for this opportunity to answer your questions.
I am a different expert
You are not out of status.
You are in a period of stay authorized to be here until there is a decision on your H4 change of status since you have pay stubs through the period you filed for the COS.
Your new employer can start the new H1 change of employment petition and use your fee receipt from your H4 change of status as a bridge to show you filed to change your status.
You are not accruing unlawful presence so you can stay here and wait for a decision on the H4 COS or the new H1B petition.
If the H1B is approved with a enw I-94 then you do not have to leave the country.
Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24186
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Judith and 3 other Immigration Law Specialists are ready to help you

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