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Second Opinion] do you ever have a client that was in

Second Opinion]Hi, do you ever...
Second Opinion]Hi, do you ever have a client that was in similar situation as me (as described below)? I'd like to know the result for him/her for my reference. 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 question is: 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, will I have to apply a new h1b by going through lottery etc.? Can I directly reuse my existing h1b for employment in that case? Thanks!(I consulted with two immigration lawyers but got contrary answers. So I'd like to ask another lawyers who has REAL client cases on that, or can point me to some legal documents etc. that CLEARLY answers my question. Thanks!)
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Answered in 14 minutes by:
3/19/2018
Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 113,375
Experience: Principal Attorney at Guillermo J. Senmartin, P.A.
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Hello and welcome back. Please remember to use FOR GUILLERMO in the subject line and message box so that no one else grabs the question and I can become your personal immigration consultant.

Please give me a few minutes to review your question and I will be right with you with an answer. Sorry for any delay. I may have to do some research and at the same time I read and type fast, but not that fast! Thank you for your patience.

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Is this something that we spoke about already and now you are asking for a 3rd opinion (since I see you already got one from ***** *****)?

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Customer reply replied 4 months ago
gave me a contrary answer as yours. In his opinion, if I cannot find another US employer within 30 days, it's unlikely that I can reuse my existing h1b. He also pointed me to the following: http://www.immi-usa.com/h1b-grace-period-sgm-law-group/
It says "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."
Customer reply replied 4 months ago
I feel very confused now.

There is nothing confusing about it. It's just two different opinions. That happens when you ask for different opinions. Now I will have to review his and tell you if and why I disagree.

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Customer reply replied 4 months ago
Thank you very much for your effort on this matter! Once this clear out, I'll make sure to leave excellent review for you. Thanks

Well, I disagree in a number of things. First, I believe that you are out of status and accruing unlawful presence from the time you are terminated. The 60 day grace period is just that IF you are able to file within the 60 days AND they approve, the time out of status and accruing unlawful presence is overlooked. Second, as to the 30 days, I see no regulation supporting that. Could it decrease the likelihood of approval? Possibly, but not necessarily. It is his opinion that it does decrease the likelihood. I cannot opine either way because I have not seen any statistics myself to support the opinion nor discount that opinion. How about you just try your best to find a new employer within 60 days and if you haven't found one by let's say the 50 or 55th day, you leave the U.S. before the 60th day. To come back, you will still have to prove to the satisfaction of a visa officer that your overstay was brief, reasonable and would not happen again. I think you should be able to do that if you leave before the 60th day.

Let me know if you need anything else, but please do not forget that positive rating. Thank you!

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Customer reply replied 4 months ago
Thank you for the reply, Guillermo. But I cannot close the question this time. As I stated in the question, I'd like to ask a lawyers who has REAL client cases on that, or can point me to some legal documents etc. that CLEARLY answers my question. So can you refer this matter to another immigration lawyer that can hopefully give me a more confirmative answer? Thanks!

Then you may end up spending a few hundred dollars on a sit down session at an attorney's office. I have plenty of REAL clients, but I'll opt out and maybe someone else will want to help you. Good luck.

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Customer reply replied 4 months ago
Thank you for your understanding, Guillermo. I appreciate your help!
Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,884
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Verified

I have been practicing business immigration law for nearly 35 years.

I totally disagree with ***** *****'s opinion about some 30 day rule he is fabricating as it does not exist in code.

I do agree with Guillermo that you may use your remainder time of 3 years for a petition by a new company after working in China for a year.

Further, although you are accruing unlawful presence by not filing a new petition or change of status during the grace period you would be able to show it was reasonable as during that period you were seeking a new employer but it did not materialize and you decided to work abroad for a year before coming back to the US on an H1B remainder time.

I indeed have had such real life cases.

Please take a moment to click on the 5 stars at the top of the page.

Judith

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May I ask where my answer failed a satisfactory answer> No rating no conpensation for me.

Judith

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Customer reply replied 4 months ago
Hi Judith, Thank you for your advice! I wanted to give you 5 stars and close the question. But before that, can you response to ***** *****'s question? I posted below:"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!"

My only comment is that there is no such code in the Code of Federal Register. I do not know where in the INA, CFR or other legal citation where he got this answer.

You will have to ask him his number of years experience, whether he has read the code start to finish and to provide you an exact citation for his answer.

I totally disagree as does Guiellermo.

Judith

Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 29,884
Experience: 34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
Verified
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