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Second Opinion] I just asked questions regarding my H1b and…

[Second Opinion]Hi, I just asked...

[Second Opinion]Hi, I just asked questions regarding my H1b and got them answered by an immigration lawyer. But I still hope to get a second option, since these questions are very important to me. Thanks! I got my H1b in Oct 2016, which was granted for 3 years. (If the employment continues, I should be able to get an extension of another 3 years) My nationality is China. I worked at a tech company in San Francisco, CA. Recently I left my job and plan to join a company in China. My questions are: 1. Since my employment here was terminated, how long can I stay in US legally? If I just travel around US and make sure to leave the country within 60 days, I should not violate any immigration law, right? 2. If I want to come back to US for employment before my current H1b status expires (in Oct 2019), can I still use my current H1b, instead of having to apply for a new one by going through lottery? 3. What if I want to come back after the 3-year period, or even after the 6-year period (in Oct 2022), is my current H1b still valid? (Will the 'timing clock' for H1b stop when I left the job or left US, and continue when I get a new job in US again?) 4. If the answer to question 2 or 3 is 'Yes', any specific procedures I need to follow before I leave US? Like, do I need to tell my previous company to explicitly 'stop' my H1b by notifying the immigration office etc.? Or it just automatically stops when I leave the job or US? Thank you very much for your advice!

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Answered in 16 hours by:
3/19/2018
Edward Young
Category: Immigration Law
Satisfied Customers: 345
Experience: Principal Attorney at The Law Offices of Edward D. Young, III
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Hi. My name is ***** ***** I am a licensed attorney. I would be happy to provide assistance. Please give me a few minutes to formulate a response. Also, please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

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1. Since my employment here was terminated, how long can I stay in the US legally? If I just travel around the US and make sure to leave the country within 60 days, I should not violate any immigration law, right? If your employment is terminated before the end of your H-1B status, you have a 60-day grace period before being considered “out of status”.

2. If I want to come back to the US for employment before my current H1b status expires (in Oct 2019), can I still use my current H1b, instead of having to apply for a new one by going through the lottery? USCIS will generally approve petitions if you’ve had status and the gap between employers is 30 days or less. That essentially gives you a month to find a new employer and file the new H-1B petition. If you do find another employer willing to sponsor you for your H-1B, that employer will need to go through all of the steps that the previous employer went through. A Labor Condition Application will need to be obtained and another I-129 will need to be filed. Fortunately, if you have already been counted against the cap with your initial petition, this new petition will not be entered into the lottery, meaning that you can make this transfer at any time, not just on April 1st.

3.Your What if I want to come back after the 3-year period, or even after the 6-year period (in Oct 2022), is my current H1b still valid? (Will the ‘timing clock’ for H1b stop when I left the job or left the US, and continue when I get a new job in the US again?). Your current H-1B visa expires in Oct. 2019. As mentioned earlier, you must obtain new employment within 30 days to obtain USCIS approval. Since you are no longer employed, your visa ends and you will be out of status within 60 days. If you plan to come back, you will need to start all over again.

4. If the answer to question 2 or 3 is 'Yes', any specific procedures I need to follow before I leave the US? Like, do I need to tell my previous company to explicitly 'stop' my H1b by notifying the immigration office etc.? Or it just automatically stops when I leave the job or US? There is no procedure to follow, you will have to apply again when you plan to return to the US.

I hope this helps. Please go ahead and rate me. If you have any follow-up or clarification questions, please ask! There is no additional fee. If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service (hopefully Excellent/5 stars!) at the top of the screen. Otherwise, I receive no credit for assisting you. I thank you in advance for taking the time to provide me a positive rating! A BONUS is also appreciated if you feel I've earned one today.

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Customer reply replied 1 month ago
Hi Edward, to be clear: since my employment was terminated, if I leave US within 60 days, spend 1 year in China, and then find a new job in US and want to come back. In that case, I will have to apply a new h1b by going through lottery etc.?
Customer reply replied 1 month ago
In other words, I cannot use my existing h1b for employment in that case?

Yes, that is correct. if you do not find a replacement job within 30 days, you need to reapply. You still have 60 days to leave the country.

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Please go ahead and rate me. I get no credit for my work for you until you rate me.

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Customer reply replied 1 month ago
Emm, I feel confused now, because you gave me exactly the contrary answer against his. Can you point me to some legal document so that we can be clear. It seems there's disagreement among immigration lawyers. Thanks!

See the following links pertaining to the 30-day grace period, where other lawyers agree with me:

http://www.immi-usa.com/h1b-grace-period-sgm-law-group/ (look at the paragraph entitled “Seek Alternate Employment”)

https://www.nolo.com/legal-encyclopedia/just-got-laid-off-h-1b-job-i-any-grace-period-can-i-another-visa-jobhunt.html which says:

"Find Another Job Quickly

The regulations do not provide a grace period for unemployment between H-1B employers. Nevertheless, USCIS generally approves petitions to change from one employer to the next if the gap between jobs is short. You're probably safe if it's a week or less, and anything up to 30 days gives you a chance.

What this means in practical terms is that you have a month in which to find a new job and have the new employer file an H-1B petition for you. If the next employer's petition is filed more than 30 days after you lose your job, the odds that USCIS will approve it decrease significantly. In most cases, if it's been more than 30 days since the last H-1B job ended, the safer course of action is to have the new employer file a petition without a request to extend your status. In this case, once USCIS approves the petition, you would travel outside the U.S., obtain an H-1B visa at the U.S. consulate abroad, and then return to the U.S. to start working for the new employer.”

Again, please go ahead and rate me. I get no credit for my work until you rate me.

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Customer reply replied 1 month ago
Hi Edward, thanks for pointing me to such helpful documents. Again, I feel I don't get a clear answer of my above question. These docs mentions that "What if the gap exceeds 30 days? Unfortunately, this may decrease the likelihood of approval. However this isn’t always the case. Your best bet is to consult with an H-1B attorney to learn more about your options and the best course of action to take."
Did you ever have a client that was in a similar situation (the gap exceeds 30 days), and succeeded or failed to get the approval from USCIS? Thanks!
Customer reply replied 1 month ago
Hi Edward, I still haven’t got your reply. I’m afraid I have to close the question and leave a negative review, since you didn’t give me an accurate answer.

No, I have never had a successful H-1B petition that has been filed after the 30-day grace period and I had never heard of one that was approved after the 60-day unemployment period. I know that this is information that you do not want to hear but this is what all of my experience and my research indicates. If you have another opinion to the contrary, I would be interested in knowing the basis for the difference of opinion. Can you give me a citation to a rule, decision, or article to which the other attorney is referring? I would be happy to be proven wrong!

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Customer reply replied 1 month ago
Hi Edward, combining all the opinions I got, it seems that it's unlikely to get approved after the 60-day unemployment period, IF one *illegally present* in US for over 60 days. However, in my case, I will leave US within 60 days (maybe it turns out to be only 10 days). During the 1 year I spend out of US, I'm not accruing any unlawful presence in US, so the illegal presence is not going beyond 60 days. In this case, according to the other two attorneys, USCIS is unlikely to disapprove it.Do you agree with them on that? Otherwise, what's your concern on that case? -- Don't worry about that something is not I want to hear. I asked 3 attorneys on the same matter, because I'm open to all opinions and will use my own judgement. Thanks!
Customer reply replied 1 month ago
Looking forward to your prompt response, Edward! No matter what you think on this matter, as long as it's your honest opinion and you have concrete evidence to support, I will not give you negative review. Please do provide your honest and responsible opinion on my case. Thanks!

If you leave before the 60 days, you should be able to reenter and reapply for an H-1B visa without any problem.

Please revise your negative ranking for me.

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Customer reply replied 1 month ago
Hi Edward, do you mean I can reuse my existing H1b without problem in that case, or apply for a new H1b without problem? Thanks!

You cannot reuse your existing visa since you left that job. You should be able to apply for a new H-1B with no problems.

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Please revise your negative ranking for me.

Edward Young
Category: Immigration Law
Satisfied Customers: 345
Experience: Principal Attorney at The Law Offices of Edward D. Young, III
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Edward Young and 87 other Immigration Law Specialists are ready to help you
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Customer reply replied 1 month ago
I revise it to 3 star, as a thank-you for honestly expressing your opinion. Considering most attorneys disagree with you and you couldn't provide concrete evidence to support your opinion, I cannot give you more stars. Thanks!
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Edward Young
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