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

Hi I was working on...
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
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Answered in 1 minute by:
7/26/2013
Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,168
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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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

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Customer reply replied 4 years ago

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


 

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

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Customer reply replied 4 years ago

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

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

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Customer reply replied 4 years 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

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

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Customer reply replied 4 years 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


 


 


 


 


 


 

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

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Customer reply replied 4 years 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

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
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Customer reply replied 4 years 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


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 Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,168
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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Judith Ludwic
Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
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