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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 107205
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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I want your help please

Customer Question

Hi,
Yes, I want your help please
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello! My name is***** and I am a licensed attorney with more than 13 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help.

You have an immigration question? What is it?

Customer: replied 1 year ago.
I am working full-time with an employer in US who filed the H1B petition for me in 2014 and which got approved and the validity is Oct 1st 2014 to Aug 31st 2017. The H1B Visa is stamped on my passport during my travel to my home country in the past so I have a valid H1B Visa until Aug 31st 2017.Now my employer terminated my employment with just 3 days notice period (informed me about termination on Feb 24th) and ultimately my last date for employment is Feb 29th and after that I am out of status. I also have another job offer with the new employer which is full-time too in hand who was willing to do an H1B transfer while I was working with current employer. However the my current employer terminated my employment with a very short notice and my new employer hasn't initiated yet the H1B transfer process. What should I do now as I will be out of status beginning Mar 01?
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 1 year ago.
We can talk or else we can do our conversations here, I have many more questions?
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Ok. For a phone call, it is an extra fee, or we can continue here without additional charge. Unfortunately, there is no longer any grace period. Even when there was, it was for 30 days and it was unofficial. So you re correct, on March 1, 2016 you become out of status. Once that happens, your visa is automatically invalidated. If you leave the U.S. on the 29th, your visa should remain good and you can use it once your new employer files for you and gets an approval. Do Premium Processing so you can get a decision within 15 business days. You would use the visa and the approval notice to come back into the U.S. If you leave after the 29th, your visa is invalidated, but because you have an H-1B visa stamp already, you could go for new H-1B visa stamping to Mexico or Canada. If you decide to stay out of status, keep in mind that you should leave the U.S. as quickly as possible. The faster you leave, the easier it will be to convince a visa officer that your overstay was brief, reasonable, and won't happen again.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. You can even ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.

Customer: replied 1 year ago.
ok, not sure about what the H1B visa invalidated is? Also, if my visa is already stamped, why is there a need to go to Canada or Mexico for stamping again? As per the law, my current employer has to revoke my H1B which employer would be doing for sure, and should issue a return air ticket back to my country which I haven't received that. So in that case, can I stay and wait until my current employer issues me an air ticket and staying until I receive would be considered as legal/illegal presence in US. Also do the new employer has to file H1B transfer while I am out of US or else the new employer has to file new H1B petition?
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

It means as soon as you fall out of status, the visa is cancelled automatically and you can not use that one again. You would have to get a new visa stamp. So if you overstay, it gets cancelled and that's why you would have to go to Canada or Mexico. And no, that's not correct. The current employer does not have to revoke your visa or status for you to be out of status. You just have to come off payroll which happens tomorrow. Sorry, I know it is frustrating and inconvenient, but it is what it is and I am just trying to keep you out of trouble. I hope you understand and appreciate that. But yes, you are correct, the employer is supposed to pay for your trip back home, but USCIS doesn't have an enforcement mechanism to make them and that does NOT protect you from falling out of status. You would have to sue your employer civilly to recover the cost of your ticket home.

And finally, if your new employer files the H-1B transfer for you tomorrow, no later, you can stay and begin working for them immediately. I doubt that will be possible because the probably don't even have the LCA yet. If it is not possible, then it would not be a transfer but it would be a new petition but you need to leave the U.S. to use it.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. Thank you!

Customer: replied 1 year ago.
Is that I need to leave on 29th itself, how about if I leave 2-3 days later as to I need to wrap up things. In that case H1B visa will be valid? So if its a new petition, then do it has to go with H1B cap (again lottery) i.e. quota or else its a general new petition which can be filed any time not specifically April 1st which is basically for quota?How about I go with change of status to B2-visitor like applying on 29th to stay in US. And when it is approved, I ask my new employer file new H1B petition? What are the chances of getting the B2 approved, what reason I need to provide for the change of status to B2? And how about B2 to H1B approval chances? what are the consequences of this?
Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Sorry, if you leave 2 or 3 days later, your visa is automatically cancelled. I don't know how else to make it clear to you. You would need a new visa stamp if you did that. But no, if you were counted against the cap during the last 6 years, a new petition would be cap-exempt. So there you are fine. No need to worry about the lottery or quota.

A change of status to B-2 would be possible IF you filed it today and IF it is approved. If it is not approved, then you have to leave the U.S. even if later an H-1B is filed for you. If it is not approved, you have nothing to cover you from the 29th until the H-1B is filed. A change of status will be denied if you ever filed an I-130 or I-140. That shows immigrant intent and it is not allowed. Also, it takes 4 or 5 months to get an approval of a change of status to B-2 and there is no Premium Processing and like I said, a H-1B cannot be approved for you to get back into H-1B status without leaving the U.S. until the B-2 is approved. If it is not, you would have to leave the U.S. I am truly sorry. I know you are looking for a convenient and risk-free alternative, but there really isn't one.

Please don't forget that positive rating. I only keep mentioning it because if you can believe it, about 30% of people on this site don't leave a positive rating and since I am not given a salary to be here, it's as if I spent my time responding for free. So you can understand, that's like working 40 hours per week, 5 days a week and not being compensated for every Friday and most Thursdays. Talk about unfair! So I hope you leave that positive rating. Your question does not close if you forgot to ask something. You aren't charged again if you respond on the same thread. Thank you for your understanding.

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. I'm just following up with you to see how everything is going. Did my answer help? Please let me know. Thank you!

Expert:  Guillermo J. Senmartin, Esq. replied 1 year ago.

Hello. I'm just following up with you again to see how everything is going. Did my answer help? Please let me know. Thank you!

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