H1B---B1---H1B Transfer

[krn2010]

Hello,

I had my first H1B visa issued with Employer A on Dec 30, 2008 with an expiration date Sep 12, 2011. I received both my undergraduate and graduate degrees from the US and was on F1 prior to that.

Employer A laid me off in the end of January, 2009, after which I had applied for a B1 change of status and remained in the US. I have had correspondence with USCIS where they asked for various pieces of information that I gave them to support my reason for the B1 change. The last letter I received from them stated that my B1 status was granted and was valid from Oct 29 until Oct 30, 2009 and it had an updated I-94 attached with the same dates (Oct 29-Oct 30, 2009). The notice was even issued on Oct 29, which means I received it after the fact.

I have recently received an offer from company B and am working with a lawyer to submit my new H1B petition (with premium processing) to get my H1B trasnferred (he's calling it an extension). I already received an approval on my LCA. I'm not very happy with my lawyer though and I wanted to run a few of questions by this wonderful forum.

He's saying that because I am currently out of status as per my I-94, I need to submit my petition application, then go to my home country to receive my visa (with a risk of getting it rejected) and come back on my new H1B visa with employer B before starting work. So here are my questions:

1) Do I need to submit any additional information with my petition application reiterating what I was doing in this one year (2009) that I was unemployed and in contact with USCIS and requesting a B1 change of status? Would this actually help my case or unnecessarily take attention away from by H1B to my B1 status?

2) How do I interpret this I-94 that was sent to me with the validity of just one day after the fact? Do I mention anything pertaining to this in my new petition application?

3) Am I still eligible for a transfer or is there a risk they might place me under the quota (company B is not quota-exempt)?

4) What advice do you have for me when I go for my visa interview at the consulate?

Many thanks!!!

[hpandey]

From what you wrote it appears the I-94 on your B1 expired on Oct 30. That means you have been out of status sine then. So your lawyer is correct that since you have been out of status since you would have to go to your home country and get the visa stamped.

There is also a 180 day rule that you can get a pardon if you have overstayed for less than 180 days. Consult your lawyer about that also.

Others can throw more light on it .

[krn2010]

Thank you, this is helpful!

[roseball]

Originally Posted by krn2010

Hello,

I had my first H1B visa issued with Employer A on Dec 30, 2008 with an expiration date Sep 12, 2011. I received both my undergraduate and graduate degrees from the US and was on F1 prior to that.

Employer A laid me off in the end of January, 2009, after which I had applied for a B1 change of status and remained in the US. I have had correspondence with USCIS where they asked for various pieces of information that I gave them to support my reason for the B1 change. The last letter I received from them stated that my B1 status was granted and was valid from Oct 29 until Oct 30, 2009 and it had an updated I-94 attached with the same dates (Oct 29-Oct 30, 2009). The notice was even issued on Oct 29, which means I received it after the fact.

I have recently received an offer from company B and am working with a lawyer to submit my new H1B petition (with premium processing) to get my H1B trasnferred (he's calling it an extension). I already received an approval on my LCA. I'm not very happy with my lawyer though and I wanted to run a few of questions by this wonderful forum.

He's saying that because I am currently out of status as per my I-94, I need to submit my petition application, then go to my home country to receive my visa (with a risk of getting it rejected) and come back on my new H1B visa with employer B before starting work. So here are my questions:

1) Do I need to submit any additional information with my petition application reiterating what I was doing in this one year (2009) that I was unemployed and in contact with USCIS and requesting a B1 change of status? Would this actually help my case or unnecessarily take attention away from by H1B to my B1 status?

2) How do I interpret this I-94 that was sent to me with the validity of just one day after the fact? Do I mention anything pertaining to this in my new petition application?

3) Am I still eligible for a transfer or is there a risk they might place me under the quota (company B is not quota-exempt)?

4) What advice do you have for me when I go for my visa interview at the consulate?

Many thanks!!!

Your lawyer is right. Since you are currently out of status (your B1 expired in Oct 2009) you cannot extend your legal status by filing an H1 extension. Your H1 extension, if approved, most likely will not have an I-94 attached. In which case, though you are granted a H1 approval, you will have to go to your home country for visa stamping and re-enter US to start working for your sponsoring employer. Also, getting an H1 approved does not necessarily mean you will be granted a VISA. Be prepared to explain to the consular officer your reason for illegal stay in the US. You need to get good advise from a reputed attorney in this regard. Also, make sure you leave US within 180 days from Oct 30th, 2009. Else, you will be barred for 3 yrs for overstaying. Good luck.