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View Full Version : What happens if one loses job, without getting GC, in the extended HIB visa period?


gimme_my_gc
10-19-2006, 02:38 AM
Hi All,

I just joined this site today and wanted to get some input on the following situation:

My current situation is:

Working for a company ABC
completed 6 years on H1 and currently in the 7th year extension
Green card in process for more than a year - Eb3 with PD Jun 2002, I-140 approved
Can extend H1B again in about 6 months, for a 3 year extension


The question I have is , if one has a valid extended H1B for the 7th year and beyond, what happens if one were to lose their job during the extended H1B period, without getting their GC?

1) Can they continue to stay till the end of the extended H1B period by applying for a job with another company?
2) Or should they leave the USA as the first 6 years have been completed without getting a GC, and the extended H1B period would become invalid as soon as they lose the job with the company that processed the extended H1B?

Any input is appreciated. Thanks for your time.

GCwaitforever
10-19-2006, 08:16 AM
If you get H1 transfer with sponsorship for GC, you can port your old PD to the new I-140 petition. Better to apply for 3-year extension now itself, if you think there will be layoffs. This gives you sufficient time to apply for perm LC/I-140.

amoljak
10-19-2006, 10:04 AM
No matter how many years you are on H1B, 2 or 10..., you are out of status as soon as your employment ends. Unlike what many H1Bs think, there is no grace period. You have 10 days to pack your bags and leave. However to verify your employment USCIS uses paystubs, so if you immediately find another job and file for a new H1B before your current employer reports to the USCIS that you are no longer working you should be OK.
So first thing you need to keep in mind is do not fight with your current employer. He can screw you in more than one way.
Second, get a three year extension if you can.
Third, find a stable employer... I know many people here hate consultancy companies, but that is the safest option for you.
If you read the transcripts of the Q&A with lawyers, posted on the front page of this site, you will find answers to question about changing jobs when you have I-140 approved etc.

chanduv23
10-19-2006, 10:25 AM
I have been through this situation and now work for consulting company. Actually I got layed off without notice in 6th year of my h1b with Labor pending in backlog. I had no resources, tools and no one gave me any consultations, everyone told me "go find another job". In 20 days I found myself a 6 month contract assignment and had a consulting company transfer my h1b and they also applied for my 7th year extension based on pending labor from my layed off company. I went for stamping at Chennai and was through, applied for GC through EB2 PERM and got my 140 approved also and now I just got used to consulting and this is my 3rd contract position with the same company and I earn 50% more than what I was earning 5 years on my fulltime job. Now that I got used to consulting, I would want to think twice if I have to get a fulltime job offer on h1b. Everything is so customozable in a good consulting company , like moving charges, allowances, expenses, traavel expenses, can be worked out in good faith.

In general, there is an unofficial grace period of atleast a month, stretchable to 2 months based on case to case and worst comes, if a job hunt exceeds 2 months, then your new job, they may give you a h1b approval but you have to get it stamped immediately as they wont attach an i 94 with it, I have seen this happen to people.

In your case, as you already have an approved 140, you have to smartly get copies of all your documents and look for a genuine consulting company, get letterheads and keep contacts with some good friends and have them give you an experience letter and move on. You can get 3 years transfer and also retain your PD. If you qualify for eb2 in new company, then you can port eb3 PD while you take advantage of eb2 movement.

Good luck

ChainReaction
10-19-2006, 10:26 AM
I have my I-140 approved from previous employer , and my labor for the current employer is stuck at BEC center. Can i get a three year extension on my H1b ? OR the I-140 has to be from the current employer?

Thanks

ChainReaction
10-19-2006, 11:24 AM
If you have an approved I140 (does not matter which company whether former, curent or future employer), you can get a 3 year H1 extension. There is nothing your current employer can do. How ever, as the others suggested above, you should find you new job and transfer your H1 by using premium processing to be on the safe side. Also apply for new GC process which would allow you to port your priority date as long as your I140 is not revoked for froad/misrepresentation. There are certain rebates on this too.
If you are layed-off, there is nothing much to think. Just act quickly to get your 3 year extension and be optimistic.

thanks tom for the reply,

I have one more question what if i am applying for the 6th year extension ( have completed 5yrs already on H1B) can i still get 3yrs extension?
thanks

fromnaija
10-19-2006, 01:54 PM
thanks tom for the reply,

I have one more question what if i am applying for the 6th year extension ( have completed 5yrs already on H1B) can i still get 3yrs extension?
thanks

You can get a 3 year extension as long as you have an approved I140.

carbon
10-19-2006, 02:31 PM
Can you change job after you get 3 year extension (based on approved 140)?

Canadian_Dream
10-19-2006, 02:43 PM
I am not sure if this is that simple. There are no clear laws that state what would be the implication if:
Your I-140 on which you were granted an extension is revoked by your employer. This is quite possible if you are not working for that employer and the employer decided to go by the book. Most big employers would do it just as a prodedure. Some would do to subsitute the underlying labor.

I have heard various things in this regard some from lawyers too, and I haven't got a clear answer on it. This provision comes from AC-21 which fails to state the above condition. There were further directives (Yates memo etc) after AC-21 to clarify various situations, unfortunately this situation wasn't answered in any of them either.

If you draw parallels from extensions granted on Labor Certification, the H1B is valid till the end of duration as long as labor remains pending. If Labor is approved or denied or subsituted the underlying H1B status is quentionable. This could mean that the extension granted is not without strings attached. This is just my opinion.




If you have an approved I140 (does not matter which company whether former, curent or future employer), you can get a 3 year H1 extension. There is nothing your current employer can do. How ever, as the others suggested above, you should find you new job and transfer your H1 by using premium processing to be on the safe side. Also apply for new GC process which would allow you to port your priority date as long as your I140 is not revoked for froad/misrepresentation. There are certain rebates on this too.
If you are layed-off, there is nothing much to think. Just act quickly to get your 3 year extension and be optimistic.

msp1976
10-19-2006, 03:00 PM
The USCIS has not taken any official position on whether they would allow the after I-140 3-year extension to be transferred to another employer.
Using this loophole looks like many of us have actually sucessfully tranferred the H1B to a new employer after the 6 year limit..

As long as USCIS does not release any regulations...We can do this ....
If asked officialy some attorneys say that it cannot be done and some are fine with that...

Immigration laws are kind of applied sporadically and can be pushed to a certain extent

msp1976
10-19-2006, 03:09 PM
Can you change job after you get 3 year extension (based on approved 140)?

It is kind of dicey...If you are quick enough you can pull it off...
You can refer to some posts up above that some people have actually done it..

Especially if you are laid off you have not much to lose and try something ...
USCIS has traditionally not taken a hard line against H1B as far as I know...

Canadian_Dream
10-19-2006, 03:15 PM
That's very correct. But I think AILA or concerned folks like us should ask USCIS to clarify their stand on it. I am sure they will do it soon.
Also, an approved extsnsion with the new employer is by no means a approval of your valid status. Simply speaking, there are various H1B approvals granted "that were approvable at the time of application". This doesn't mean that status is valid for the entire duration, one has to maintain the status by keeping the job etc and meeting the other requirements of approved H1B petition. That's true for extensions too it MIGHT be valid/approvable at the time of filling when your I-140 was approved and not revoked. If revoked you could be potentially out of status if indeed that was the CONDITION of the approval.
Unless we know that CONDITION of approval (it could be unconditional approval too but it must be stated) we are not sure. If the USCIS later clarifies that CONDITION it could be applied retroactively and that means one is out of status during the whole time after the I-140 was revoked.
I am not saying this will happen but it is essential to find out the CONDITION of apporval whatever it may be.

The USCIS has not taken any official position on whether they would allow the after I-140 3-year extension to be transferred to another employer.
Using this loophole looks like many of us have actually sucessfully tranferred the H1B to a new employer after the 6 year limit..

As long as USCIS does not release any regulations...We can do this ....
If asked officialy some attorneys say that it cannot be done and some are fine with that...

Immigration laws are kind of applied sporadically and can be pushed to a certain extent

Canadian_Dream
10-19-2006, 03:19 PM
You are making an assumption that an approved petition is an indication of a valid status for the entire duration of extension. This may or may not be true after the I-140 is revoked.

It is kind of dicey...If you are quick enough you can pull it off...
You can refer to some posts up above that some people have actually done it..

Especially if you are laid off you have not much to lose and try something ...
USCIS has traditionally not taken a hard line against H1B as far as I know...

msp1976
10-19-2006, 03:38 PM
That's very correct. But I think AILA or concerned folks like us should ask USCIS to clarify their stand on it. I am sure they will do it soon.

The AC-21 became a law in 2001.... if they really wanted to clarify it, by now they would have....They have taken a position of strategic ambiguity....

Government lawyers like this kind of situation...If they donot like something you or me not doing they can use this weapon against us....to throw you/me out..

So the crux is if you/me donot get into any trouble like drunk driving or something...we can get away with some things...

msp1976
10-19-2006, 03:40 PM
You are making an assumption that an approved petition is an indication of a valid status for the entire duration of extension. This may or may not be true after the I-140 is revoked.

That's why you have to be quick...Before your earlier employer revokes the petition...(that takes some time..) you got to get a new labor and a new approved I-140 and after that they cannot throw us out technically...
The whole thing is a mess..

ash0210
10-19-2006, 03:43 PM
gimme_my_gc, do you have EAD?

If yes then.. you are NOT out of status...only worry would be Annual W2 salary of your needs to be around gross specified in Labor..


Hi All,

I just joined this site today and wanted to get some input on the following situation:

My current situation is:

Working for a company ABC
completed 6 years on H1 and currently in the 7th year extension
Green card in process for more than a year - Eb3 with PD Jun 2002, I-140 approved
Can extend H1B again in about 6 months, for a 3 year extension


The question I have is , if one has a valid extended H1B for the 7th year and beyond, what happens if one were to lose their job during the extended H1B period, without getting their GC?

1) Can they continue to stay till the end of the extended H1B period by applying for a job with another company?
2) Or should they leave the USA as the first 6 years have been completed without getting a GC, and the extended H1B period would become invalid as soon as they lose the job with the company that processed the extended H1B?

Any input is appreciated. Thanks for your time.

Canadian_Dream
10-19-2006, 04:10 PM
Ok my last attempt to convey my thoughts:
If your H1B is approved and you are granted an extension it only means that your application was approvalble at the time of filling. Now in order to maintain H1B status you should have:
1. Job with that employer who sponsored H1B
2. Income as dictated in LCA
3. Other condition such as NO DUI etc

Now what if one of the condition in the list above is:
4. Your I-140 on which the extension is granted should NOT be revoked.

I know this is not spelled out clearly, becasue in the past no one took this avenue. Now with premium processing everyone wants to do a quick PERM + 140 to get 3 more years on H1B. It is important that USCIS should clarify their stand on it, one way or the other. In fact if any of the service center sets a precedence by simply implying that one's H1B is invald after I-140 is revoked the interpretation will be cleared. Unfortunately it hasn't happend yet or I we are not aware of it. I hope they clarify it sooner than later.

That's why you have to be quick...Before your earlier employer revokes the petition...(that takes some time..) you got to get a new labor and a new approved I-140 and after that they cannot throw us out technically...
The whole thing is a mess..

asdfgh
10-19-2006, 04:29 PM
moving into a bigger and better role in your current company? I have been given multiple offers to jump into senior roles [in diff area than my current one] within my company and have had to refuse due to the greencard processing thats ongoing [I-140 approved last week].
Can I get a 3-yr extension and move into a new role during the extension period, apply for new LC using PERM and use my current PD?

Canadian_Dream
10-19-2006, 04:42 PM
Not really, broadly speaking lack of information can never be a benefit to consumer. (Read: hidden clauses in agreements). It might be that they have been doing that and we don't know. You will ONLY know if you apply for another H1B transfer or any other application say I-140/I-485 with new employer and then USCIS MIGHT tell you that your I-140 is revoked on MM/DD/YYYY and you are no longer in valid H1B status since then. That would be too late and it is not retroactive. Remember that onus is on you to maintain valid H1B status all the time during the period of H1B. Once again I am not saying what I mention above is the correct interpretation of law, but in the absence of any clarify it can be one of the implication.


then it is to our benefit that they dont clarify it for as long as possible, bec normally any decisions are not retroactive but only for cases going forward.

msp1976
10-19-2006, 05:19 PM
Not really, broadly speaking lack of information can never be a benefit to consumer. (Read: hidden clauses in agreements). It might be that they have been doing that and we don't know. You will ONLY know if you apply for another H1B transfer or any other application say I-140/I-485 with new employer and then USCIS MIGHT tell you that your I-140 is revoked on MM/DD/YYYY and you are no longer in valid H1B status since then. That would be too late and it is not retroactive. Remember that onus is on you to maintain valid H1B status all the time during the period of H1B. Once again I am not saying what I mention above is the correct interpretation of law, but in the absence of any clarify it can be one of the implication.


well...The history is that USCIS did release the proposed regulation dealing with all these back in 2002 if I remember correctly..Then there was a comment period...They got so many comments...that after that they did not even bother to publish the regulations in the federal register...That was the last heard of it....Now the only time when the issue of these regulations can possibliy come up is when there is a leadership change in USCIS...Any our fate would depend on who is in control of USCIS at that particular instance...

But this sword would fall some day..I donot know when..I donot know if it would fall on us....or we would just steer clear....The thing is that there is a lot of resistance to changes in status quo both inside USCIS and AILA...
Well AILA would want the status quo to continue....Them lawyers are making money of us anyway.....

I am in US last 7 years...The career is stagnant..No sign of GC anywhere....I am very despondent...But then what else is new ???