Workers in H-1B Visa and Layoffs

Due to recession in U.S. many companies are laying off their workers. Some employees in the company in H1B Visa is also affected. Nagesh is one such H1b worker and he had posted the following comment in H-1b Visa Questions and Answers.

Nagesh Asks

Hi,
I have a situation.
I was employed with company A with whom my H1B started in Oct07 and I went to India and got H1B stamped on passport. H1B valid until Oct2010. In last week of Oct 08 company A laid me off and I found opportunity with company B on Nov 4, 2008. An immigration attorney (not belonging to company) filed for H1B transfer which USCIS received on Nov 10. After starting to work for company B for a month, suddenly both the employer and lawyer realized that I was not supposed to work until the petition has been completely approved and that I was accumulating illegal working days, so they terminated me from payroll. The petition is still under process with USCIS.

The immigration attorney says that once the petition is approved, I will have to travel to mexico crossing the border at Tijuana and then re-enter USA with the new I-797 and employment letter such that it would bring me back on status. The attorney says that I need not go to USCIS in mexico for another visa interview as my passport has already been stamped for H1B from Oct2007-Oct2010.

Question:
Is it necessary to travel outside US as the attorney suggested to bring me back on status? It seems to me like a regular visa transfer from company A to B.
Is there a chance that I get stuck at the Tijuana border and they ask me to go to USCIS in mexico or deport me back to india?
If yes for travel, do we have to do this everytime I change companies?
Please explain.

H1B Visa and Laid Off – Answer

I did bit of searching to find the exact answer to your situation. Here’s that I found @MurthyDotCom

The USCIS typically takes several months to process H1B revocation notices. The revocation does not prevent the approval of an H1B by a new employer, although the ability to extend H1B status in the U.S. is affected by whether or not the individual is maintaining H1B status at the time the new employer files its H1B petition.

As a practical matter, the revocation of the H1B may not appear in the USCIS system immediately. However, this is a matter of procedure and not official policy. It is necessary to make efforts to find another job as soon as possible and have the new employer sponsor another H1B promptly. The USCIS will review the proof of status submitted with the new employer’s case. This is normally in the form of current pay stubs. If there are not current pay stubs as proof of continuing status, it may not be possible to obtain an extension of stay (reflected in an approval notice with an I-94 at the bottom.) Thus, the new employer’s H1B petition may be approved, but with an instruction to depart the U.S. and request a visa at a U.S. consulate. In this event, it would be necessary to travel abroad, obtain a new H1B visa at the consulate (if needed), and obtain a new I-94 card at the Port of Entry.

If you are laid off from job with H1B Visa, you can find answers to other frequently asked questions like

1. I am in H1B status, but I also filed my I-485 and received an Employment Authorization Document (EAD). Do I need to maintain H1B status, or can I just rely upon my EAD?
2. I have an H1B petition with Company B and was just laid off. I have an H1B petition through Company A, where I used to work, which has not expired. Company A would like me to come back to work for them. They did not revoke the H1B petition when I left. Can I go back to work for Company A?
3. If I am being laid off, can I apply for some other status?
4. If I apply to change my status, is it then possible to revert to H1B if I find a new employer?
5. What happens if I am terminated but the company keeps me on as an employee without pay?
6. If the company gives me a severance package that includes receiving pay for two months or more after I am laid off, am I still considered terminated and therefore “out of status” during those months?
7. Can I still file for an H1B “transfer” one month from the time I was laid off? What about four months from the time I was laid off? I do not have recent pay stubs.

Source of Above Questions and Answer – Murthy.com

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