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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94376
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Regarding H1B - Out of status question

Resolved Question:

Hi, I am currently on H1B visa with Company-A. I am trying to attend interviews to get a client assignment. I dont have enough time though and only left with a week's time. I am getting interview calls. In case, if someone is interested to offer me a job, then even if they initiate LCA filing, it will take atleast 7-10 days to get just LCA approved and then they will have to file H1B. Even if they apply H1B in premium processing, it will still take 15 days so I am looking at 2 weeks to even file H1B and get the receipt. So after my last working day with current company-A, I will need another 2 weeks to stay in some status(some say I can stay back as long as I have receipt number). Even if this is the case, can I stay for sometime without on a payroll until my new employer's petition gets transferred? Or will I be out of status the moment I am not in any company's payroll?

Submitted: 9 months ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one.



Unfortunately, there used to be a 30 days "unofficial" grace period where USCIS would look the other way if you found a job and filed a new H-1B petition within 30 days of losing employment. That is no longer the case. Most likely because now the economy is bad and too many U.S. workers are unemployed and looking for jobs, they probably want to free up H-1B jobs to get U.S. workers into those positions. So it has become very difficult. As soon as you come off of payroll, you are out of status. So what you have to do is stay on payroll, do your interviews, get the LCA and as soon as the H-1B transfer is filed, then you can switch to the new employer without having to wait for approval. That way there is no gap in your status. If not, then you will need to leave the U.S. and get H-1B stamping from outside in order to come back. I am truly sorry. I wish I had better news for you.



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 to you. 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/ and make sure you type: FOR GUILLERMO on the subject line. Thank you!

Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94376
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 3 other Immigration Law Specialists are ready to help you
Customer: replied 9 months ago.

Thank you very much for clarifying this question for me.


Much appreciate spending your time for answering me

Expert:  Guillermo J. Senmartin, Esq. replied 9 months ago.
You are very welcome! Thank you for the excellent rating. If you would like to request me in the future, please remember to put my name in the subject box. Good luck to you!
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94376
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 3 other Immigration Law Specialists are ready to help you
Customer: replied 9 months ago.

Thanks Guillermo, not sure if I can reply or should ask question as a different question. But this question is related to the question I am replying for.. so here it goes..

 

I work for Company-A. Say company-B is filing my LCA next week(I am getting rolled off from my payroll on 08-NOV-2013) and might only initiate my H1B the week after next or so once they receive approved LCA. In this case, am I out of status or can I become on status if Company-A just offers me an offer letter and initiated LCA application?

Expert:  Guillermo J. Senmartin, Esq. replied 8 months ago.
You have to have payroll checks to cover you until the date that Company B files for you. Immigration will ask fot it and if you do not have it, then they will deem that you are out of status from that date. Sorry. I wish I had better news.
Customer: replied 8 months ago.

Thank you Guillermo


 


Can Company-B have me in payroll from the next day of my last working day in Company-A? and pay me from the start date in LCA (which is next day after my last working day) during the time the company is filing my my H1B visa. I mean...


 


Last Working day in Company-A = 08-Nov-2013


LCA Start date in Company B = 11-Nov-2013


H1B filing initiated by Company B after 10 days of receiving approved LCA


Once H1B receipt is received, Company-B starts my payroll from 11-Nov-2013


 


Is the above situation possible?

Expert:  Guillermo J. Senmartin, Esq. replied 8 months ago.
It doesn't works. USCIS will want to see pay checks from Company A up until the time Company B files the I-129 for you and USCIS receives it. That's the date that counts. Company B cannot start paying you until USCIS received the I-129. So they cannot back date payments from that point. You have to have Company A pay stubs until that point.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 94376
Experience: 10+ years of experience in various aspects of U.S. Immigration Law.
Guillermo J. Senmartin, Esq. and 3 other Immigration Law Specialists are ready to help you

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