URGENT - Laid off before Oct 1st - Withdrawal Next Week Oct 15th - H1B Consular Processing?

Guys,

I would love to hear all insights into my situation. The timeline is very tight since I assume the actions need to be done before next Wednesday.

  • 4/2014: Company A filed H1B Petition
  • 5/2014: H1B petition approved
  • 8/15/2014: Termination date at Company A
  • 8/31/2014: Last Pay Stub Period
  • 9/30/2014: Last day of I-20 and OPT Cap-Gap
  • 10/15/2014: Next week Company A will revoke my H1B Petition

I just got an offer from another company who is willing to file for H1B transfer for me. However, we just started the process and they haven’t filed for LCA yet.

My questions are:

  1. Does the 60-day grace period kick in 8/15/2014 or 9/30/2014? One of the attorneys told me grace period starts at the end of I-20 expiration since you are not required to work during OPT Cap-Gap anyway.

  2. Since it hasn’t yet been 60-day grace since 8/15/2014 or 9/30/2014, Am I still in legal status and won’t go out of status until either 10/15/2014 or 11/30/2014?

  3. When does the new company need to file the H1B transfer for me? Do they need to do it before 10/15/2014?

  4. Should they do this as COS or Consular Processing?

  5. What are the risks or basis of denial of doing Consular Processing?

  6. Since I stopped working for my original H1B Petitioner on 8/15/2014, is my H1B I-797A still valid? It was subjected to the cap so will I not be counted against the cap again when transferring employers or no? In short, am I still Cap-Exempt?

Hi Bond Trader,

Too many questions!! But I’ll try to answer them in short

  1. Does the 60-day grace period kick in 8/15/2014 or 9/30/2014? One of the attorneys told me grace period starts at the end of I-20 expiration since you are not required to work during OPT Cap-Gap anyway. - Attorney is correct, you have 60 days from OPT expiry.

  2. Since it hasn’t yet been 60-day grace since 8/15/2014 or 9/30/2014, Am I still in legal status and won’t go out of status until either 10/15/2014 or 11/30/2014? - You are 100% legal H1b status right now. OPT has expired and now you are an H1-b.

  3. When does the new company need to file the H1B transfer for me? Do they need to do it before 10/15/2014? - The new company needs to start your transfer immediately, they can do that from today and it won’t have any effect on your existing H1-b termination.

  4. Should they do this as COS or Consular Processing? - Stick to COS. It’ll be easier since you are already in the US and don’t require stamping unless you want to travel outside the US.

  5. What are the risks or basis of denial of doing Consular Processing? - There can be many reasons, primary being your paperwork not being in order. Also, if you are working as a contractor, make sure you can defend the employee-employer relationship.

  6. Since I stopped working for my original H1B Petitioner on 8/15/2014, is my H1B I-797A still valid? It was subjected to the cap so will I not be counted against the cap again when transferring employers or no? In short, am I still Cap-Exempt? -

Yes, a new H1b transfer will be counted as Cap-Exempt in your case.

Thanks so so much prasentjit1986. This is much appreciated.

  1. My only concern of doing COS is that I have left my job since 8/15 and last paystubs were for 8/31 pay period. So I don’t have recent paystubs for COS for my original H1B petitioner.
  2. I spoke with the new employer and they haven’t yet reached back to me regarding the process yet so it is not likely the LCA is sent out today. If they file after 10/15, it is likelly I have to do CP for visa stamping right?
  3. My concern for doing CP at a consulate is whether or not the VO will be asking about my unemployment starting in August before Oct 1st and if this might be a basis for denial.
    Thanks so much again,