This is guest post by Immigration Attorney Elaine Martin based in Dallas, TX. She answers some of the frequently asked questions about H1B Visa and consequences of layoff.
H1B and Laid Off – FAQ’s
- How long can I stay in the US after my H-1B job ends?
- Can I stay in the US to look for another job?
- What are my employer’s obligations if I am laid off?
- Can I collect unemployment or other benefits while unemployed?
- Can I change to another status to stay in the US?
- What happens to my green card process if I am laid off?
Read the answers for the above H1B Visa and Laid Off FAQ’s questions here.
Elaine Martin has provided trusted and creative immigration solutions to individuals and corporations since 1997. She has focused on employment and family-based immigration for many years, and is an immigrant herself so she understands the concerns of her clients.
About Raghuram Sukumar
Hi ,
I have B1 Visa. I want to file my H1 next year. So i am planning to come in USA and after wards i want to file it. I heard its easy. But recently i came to know that for filing H1B on visitor visa ,one should have minimum stay of 60 days in US afterwards one can file it .Is it true ?
My old employer applied my H1B, I could see the decision that it is approved and he was telling me that it is not yet confirmed. Now I have moved on to my new job and employer on my L2 EAD status, I want to go back but my old employer is telling me that he has withdrawn my H1b… In which cases can he withdraw it without my knowledge?
and Can he get it back before this October?
My last say with the previous employer is june 22nd. But i was given pay for the next 2 weeks after that. My previous employer told that he would not revoke my visa until July end. Will my H1B transfer to the new employer accepted by USCIS??? if i file sometime in July?
I got my H1 on November 2011 and my project was ended in March 2012 and I didn’t get pay in April and May from my employer as i was not on any project but he will start running my payroll from this month i.e from June and he showed in USCIS that I took vacation for two months for some personal reason. I got a full-time and they will start my H1 transfer processing in the end of July as they want one recent pay stub from my current employer. Is I am living legal in those days or will there be a problem in H1 transferring?
My OPT started on july 5,2011 & I have been working on OPT since August 15, 2011 with an employer AA. The employer filed my H1 in september & I quit the job in Oct 27, 2011.
I started working with another employer BB from nov.15, 2011 on 1099(contractual) as i was on OPT.
My first employer didn’t cancel/ withdraw H1 petition & my H1 got approved with him effective Dec14.
I was shocked! My new employer, with which i was working on 1099 is willing to sponsor me for H1 and I filed for H1.
During the period Dec 14, 2011 to the design on my new petition..
What is my status? H1b or OPT?
If H1, even though I quit the employer( who filed my H1) before the decision was made on H1, Is he obligated to withdraw the h1 b petition , since h1 b is employer specified & he doesn’t need my services?
Upon the approval of H1b on Dec14, did my OPT terminated( I Have never worked on that H1b)
Can I stay in USA legally since my petition is underway?
Hi Anu,
I am currently in a similar scenario. I am curious of what action we need to take and how can we handle the situation. Could you please comment your experience.
Thanks,
John.
Hi, I am currently in US on a tourist visa, I came one month ago . Can I extend my tourist visa in order to stay a total of 1 year ? and if yes how long before should I apply for extension ?
Also can I apply from tourist visa for H1B visa ? if yes while I am in US until I get the answer that means that I am in pending and I am legally in US ? Thank you very much for your answer . Regards
Hi Constantin did u get a response for your thread, please send me email of the response because am into the same situation
Hi,
I am a social worker and i was working in USA between 2008-2009 on H1b. But for personal reasons i had to leave US. Its almost a year now that i am in India. One comapny is ready to give me job but they want me to be there for an Interview. After the Interview they are planning to hire me on H1b. My question is…
Is it possible to travel on a visitors visa and attend the interview. Incase if they apply for my H1.. will i be in trouble.. because the visitor visas are ment to get back to the home country. What do i do now?
Hi Elango,
Iam messaing to get some information from you. Iam a Social Worker from India, residing in US on dependent visa. Is it possible to get H1b job without professional state license. Few of my friends came here on B1 for interview and working here.
I left US in 2009, 2 weeks after I left my H1-b was terminated, but I still have it stamped on my passport with 2011 as expiration date.
I want to visit US for 2 weeks on visitor visa. Will my past H1-b visa present any risk of being rejected? (and I am unmarried, but currently working for a MNC in India and want to continue my job back here)
My passport has been sent for renewal but I have not received it as yet. I have a receipt and copy of my visa. Is it possible to send my H1B renewal application under these circumstances?
If not, how long can I stay legally in US on an expired visa?
Any information will be appreciated.
Thanks
Hi,
I worked in US on H1B for 3 years after which I let go of my H1B to pursue graduate program in US. Currently I am on F1 status. If another company applies for my H1 next year, will I be eligible? If so, will I be eligible to stay in US for 6 more years or 3 years considering that I havent stayed out of US for 1 year before applying for fresh H1?
Kindly help!
-Ravi
Ravi – If you have used 3 years of H-1B time, you can get another 3 years. The only way you could get 6 years is if you spent one year outside the US. In that situation, you can start a new 6-year period however you would be subject to the H-1B cap..
what happened to my b1/b2 US visa which will be expired on August 2010 when h1-b visa was issued to me? Is my b1/b2 Visa still valid even i have this h1-b visa?
The B visa in your passport should remain valid even after the consulate stamps you with a H-1B visa. You could use either to enter the US, as appropriate for the activity you plan here. If you will be working, use the H-1B visa to enter. If you are not working, use the B visa.
I was working on OPT with one of the employers in TX . My OPT was till December 19th 2009. They filed for my H1 this year and it got approved. They laid me off May end and asked me to find something else for me.
I decided to do my Masters in Comp. Science and took admission in NDSU. I got my I20 and I am enrolled here for Master's program . My OPT is no longer valid and I am on F1 again.
I am not sure whether my company has revoked my H1 or not. I am just worried that if they haven't revoked it yet will my F1 be invalid once H1 becomes effective Oct 1st 2009.
I am worried about my status. I just wanted your suggestion regarding this.
I would really appreciate your reply and support.
Aditi – you need to be careful, because there is a good chance that the H-1B will take effect on 10/1 automatically. If the approval is for a change of status, you will be in H-1B status on 10/1. You should write to CIS explaining that you want to revoke the H-1B, n case the employer has not done so.
Dear Ms. Elaine,
USCIS got my application where I explained that I want to remain on F1 status. However I sent them Change of status application from h1 to f1 , although my status was still f1. But on Oct 1st 09 , H1 status became effective. Now they have sent a query askign me whether it's a reinstatement of F1 or change of status from h1 to F1.
I am confused. In my situation will it be a reinstatement as i filed before 1st October 09 or will it be change of status.? Please suggest.
Also they are asking for pay-stubs from my employer , but I dont have them as I have not been working for my employer since end of May 09.
Please sugesst what should I do.
Thanks
Aditi
My case is I'm on H1b. it has been 2months since we're searching for client.My employer is giving me specific dates of my stay here after somehow encouraging me last yr to be here for a possible job to fulfill my H1b. Employer mentioned if within that specified time, i won't have a client, they will settle to let me back home – in this case I wouldn't want to given I'm exhausted big money to pay their service and airfare.
In some article I read that USCIS allows part time jobs or a warranty period for the employee to stay or apply for tourist visa.
In my case, I have a tourist visa expiring on 2018. Here's my question:
1-Can I use my visa to extend my stay here and find a clerical job?
2-Can i use my visa to extend my stay here and find H1b transfer even if I don't have a paystub yet?
3-What is the best case scenario to lengthen my stay here legally and find a job?
4-Are applying for H2b and/or F1 visa an option? What are the pros and cons?
Asareth,
Your questions are very specific and it would be better to have a formal legal consultation with an attorney to discuss your situation in detail. I am not able to provide lengthy answers on such a casual forum as this.
One question,
I am currently working on OPT but my H1 Status is “Approval Notice Sent”. My H1 will start from Oct 1st 2009. What happens if I am laid off before that period?
Can I stay in the US by changing status or something?
you can stay and change your status (for example, re-apply another h1b with a new employer) before Oct. 1st, 2009
after that, you are not allowed to stay legally.
also, you may still go back to school to get another F1 by Oct. 1st, 2009
Can I use the same H1 Visa, if I switch employer?
You can use the same visa stamp in your passport to return to the US, however your new employer would need to file a new H-1B petition and have that approved for you. You can return on the old visa showing the new approval notice. See my website FAQs for more details.
Good Job!
Same question…
my opt will end June 30..and my visa status is (check was cleared and expecting to recieve notice receipt any time soon)
since i am working in auto company, good chance to be laid off any time soon..
what if i get laid off in few weeks? can i stay in US untill opt period? after going back to my country, is it possible to come back to US with this H1B in the future if i get approved? certainly, i have to change the H1B sponsor company..
you can stay with your opt.
you can’t come back with your h1b, since your h1b is “terminated” when you are laid off. you can re-apply another h1b, but it will be a new h1b, which means you will have to go over the whole process again.
John,
You may not be subject to the H-1B cap again, even if you are laid off by the current employer before 10/1/09. Although you will never have actually held H-1B status, you will have been counted against the cap, so you might not be counted again. I have successfully made this argument in the past, although there is no guarantee that it will always work.
1)what if i am temporary lay off?
expecting 2~3month layoff…
can I go back to my country and reenter US until my opt visa is valid?
opt valid till June 30, 2009..
2)if i get layoff, I find new company,
then, i am not going to be restricted under the H1b Quta again?
John,
1) If you are laid off temporarily, before the H-1B takes effect, you should be able to return to the US in F-1 status as long as your visa and status is valid, and you are coming to work in OPT. There used to be a risk that SEVIS registration would be cancelled once a person was approved for H-1B, but CIS has said that it has fixed this problem. I wouldn't like to test the system, however.
2) You might be considered subject to the H-1B cap again with a new employer. I have successfully argued that a person who was counted against the cap once, even if the H-1B never took effect, should not be counted again. However, this strategy might not always work.