How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Judith Your Own Question

Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24929
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
12467490
Type Your Immigration Law Question Here...
Judith is online now
A new question is answered every 9 seconds

Hi I was working on TN and recently got laid off. the company

Resolved Question:

Hi
I was working on TN and recently got laid off. the company i was working also applied for H1 and it was approved. But it did not activate the H1 as my TN was valid. Since I got laid off, I filled for COS to F2 on last day of employment and COS is still in process. I have another company and they want to file H1B. Can the new company file for H1B under cap-exempt category while by F2 is in process? or what are other options I have, can i leave country and stay in canada and let the new company file for H1b under cap-exempt and travel back when it is approved. Please advice
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.

Hello,my name is Judith. Thank you for this opportunity to answer your questions.

What year is the H1B valid for? 10/1/2013 or 2014?

 

Judith

Customer: replied 1 year ago.

The H1 was valid from 10/1/2012 to 2015.


 

Expert:  Judith replied 1 year ago.

And was the H1B petition for consular processing (even tho as a Canadian you don't do that) or was it a change of status?

 

Judith

Customer: replied 1 year ago.

H1B was files as consular processing as I was travelling last year.

Expert:  Judith replied 1 year ago.

You can use the petition. You will not be required to meet the cap count again.

The text of the law only requires that the prior petition was counted towards the cap within the preceding 6 years of a new petition being filed.

Any alien who has already been counted, within the 6 years prior to the
approval of a petition described in subsection (c), toward the numerical
limitations of paragraph (1)(A) shall not again be counted toward those
limitations.

The fastest way is to depart and wait for the petition to be processed through premium processing and then re-enter.

 

Judith

Customer: replied 1 year ago.

Should I depart before H1 is filed or can I depart any time after H1 is filed. And should the H1 again filed as consular application right? And when I depart will my COS from TN to F2 automatically abandoned or should I ask to revoke that application before the company apply for H1b. Say If i depart over the weekend my current COS will abandon and can I immediately enter via B2 or F2 with I20 at border and then aply for H1B and COS with-in.


 


Sorry for too many questions.


Thanks


Ramesh

Expert:  Judith replied 1 year ago.

Your departure automatically abandons your COS to F2.

You still should write USCIS and withdraw based on abandonment via departure.

Your new employer again requests consular processing.

I have concerns about leaving, immediately renentering on B2 or F2 and then immediately applying for COS as that looks like fraud, that you lied when you said you were coming to visit or be spouse of student when you had intent to work all along.

Since you have a pending COS and are not accruing unlawful presence you can wait until the petition for H1B is approved.

Judith

Customer: replied 1 year ago.

a. Can the employer apply for I129 for H1 for consular processing while my COS is pending this way I dont have to leave my family and once approved Can I go out and abandon my F2 COS and reenter with H1.


 


or leaving out and staying out while application H1 is processed via premium is the only option.


 


Thanks


Ramesh


 


 


 


 


 


 

Expert:  Judith replied 1 year ago.

Ramesh, I believe I answered this but not clearly:

a. Can the employer apply for I129 for H1 for consular processing while my COS is pending this way I dont have to leave my family and once approved Can I go out and abandon my F2 COS and reenter with H1.
Yes, you can do this and it is what I suggested you do. You can wait here with the pending COS while the new H1B consular processing petition is adjudicated.

 

 

or leaving out and staying out while application H1 is processed via premium is the only option.

You do not have to do this since you have the pending COS..

 

Judith

Customer: replied 1 year ago.

Since I am no longer working with previous employer and since I have not activated my initial H1, will there be any complication in new H1. Also how should the new H1B filed. Should it be filed as change of employer or filed as a new petition under Cap-exempt.


 


Thanks


Ramesh

Expert:  Judith replied 1 year ago.
It is filed as a new employment petition because you are not working in H1B employment for the previous petitioner.
It is cap exempt and USCIS will know that with the copy of the I-797 approval notice for the prior petition.
I hope you have a lawyer doing this. Filing an I-129 is a complex process.
Judith
Customer: replied 1 year ago.

Thanks a lot Judith. The company lawyer is doing. Initially the lawyer mentioned that I have to wait till I get my F2 approved and hence I am seeking answers.


 


So based on your information, The company can file a new petition with previous approval and consular processing under premium processing while I am waiting for my F2 COS. and once I receive the approval all i have to do is go out and reenter with H1. Please confirm if my understanding is right so we can close this topic.


 


Thanks


Ramesh

Expert:  Judith replied 1 year ago.

So based on your information, The company can file a new petition with previous approval and consular processing under premium processing while I am waiting for my F2 COS. and once I receive the approval all i have to do is go out and reenter with H1. Please confirm if my understanding is right so we can close this topic.

Correct

 

Judith

Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 24929
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

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Guillermo J. Senmartin, Esq.

    Immigration Lawyer

    Satisfied Customers:

    30464
    10+ years of experience in various aspects of U.S. Immigration Law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Immigration Lawyer

    Satisfied Customers:

    30464
    10+ years of experience in various aspects of U.S. Immigration Law.
  • http://ww2.justanswer.com/uploads/GE/GeorgetownLawyr/2011-6-16_115959_MeatOffice.64x64.JPG Georgetown Lawyer's Avatar

    Georgetown Lawyer

    Immigration Lawyer

    Satisfied Customers:

    8543
    10+ years of Immigration Experience in All Areas A-Z complex immigration cases & issues in all areas
  • http://ww2.justanswer.com/uploads/personwilt/2010-1-10_164828_person1.jpg Wilton A. Person's Avatar

    Wilton A. Person

    Immigration Lawyer

    Satisfied Customers:

    3550
    Knowledgeable and experienced immigration lawyer.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2889
    Private practice in several areas, including immigration
  • http://ww2.justanswer.com/uploads/Assielle/2008-12-13_165256_2_edited.jpg Law Girl's Avatar

    Law Girl

    Lawyer

    Satisfied Customers:

    451
    My law firm practices immigration law.
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    238
    B.A.; M.B.A.; J.D.
  • http://ww2.justanswer.com/uploads/VI/Vilnius100/2012-7-12_193419_Gintare.64x64.JPG Gintare Grigaite's Avatar

    Gintare Grigaite

    Immigration Attorney

    Satisfied Customers:

    185
    Expert Immigration Attorney
 
 
 

Related Immigration Law Questions

Chat Now With An Immigration Lawyer
Judith
Judith
Immigration Lawyer
24929 Satisfied Customers
34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.