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Out of status, employment gap and status revalidation Gap in employment(paystubs) and the resulting problems during status transfer and green card filing.

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Old 02-27-2009, 11:22 AM
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Default H1B-H4, NO Job-please help

Dear memebers

I was on H-4 and then got my H1-B visa approval from Oct 1,2008. But since then I was not able to join any job. Now, as I have been out of job for more than 60 days what are the options for me to keep my H1-B.

1) Our company attorney has advised us to file for H1-H4 change of status form. They will produce leave of absence since Oct 1,2008. But we are not sure about the denial rate and also as they are not providing any paystubs ,the relationship between me and my employer. And if the change of status gets denied will I not be able to enter US for next few years? and have to leave USA immediatly.

2) We also read on this forum about the option of re-entering US on H4 status. My passport is already stamped with H4 visa valid till Sept 30,2009. Do I need to get it re stamped or will just have to produce my existing H4 visa at port-of-entry. So what all documents do I need to carry with me to produce at port of entry. Also, which I-94 form should I use to go out of US. Also if I enter US on H4 status and in future I am able to get a job what procedure will I have to follow.

We found about the mess, only by reading post's on this blog--so thank you all for opening eye.

I cannot file complaint for that employers, as my spouse is working for same for almost 3 years and they are filing extension before sept 2009.

Would appreciate help, as if needed I will leave and re-enter as soon as next week, to minimize duration of my OOS status.
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  #2 (permalink)  
Old 02-27-2009, 11:39 AM
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Quote:
Originally Posted by guidance View Post

1) Our company attorney has advised us to file for H1-H4 change of status form. They will produce leave of absence since Oct 1,2008.
That doesn't look like good advice to me. If I were you, I would seek second opinion.

You are out of status. PERIOD. END OF STORY.

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Old 02-27-2009, 11:59 AM
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Can she re-enter on H4 Visa, which is already stamped and valid till sept 2009, or even that is in not valid.
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Old 02-27-2009, 12:01 PM
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Originally Posted by guidance View Post
Can she re-enter on H4 Visa, which is already stamped and valid till sept 2009, or even that is in not valid.
Before I answer that, could you please share why did you chose to file for H1 when there was no job offer? Don't you think this is abusing the system.

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  #5 (permalink)  
Old 02-27-2009, 12:12 PM
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When they have started process for H1b, they had project in hand and then the economic conditionss started to get worsen in AUG. My wife is pregenannt, so the projects she was getting was in other state, then where we live, so it was not feasable.

So to your point yes when we filed had no idea, that the projects already in hand, will be cut short in duration.
Even I am working on project with that comapany with 120K plus for last 2 years, but now I have been asked to cut my OT.
So, things are tough and we need to resolve issues in friendly manner not pointing mistakes!!.
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  #6 (permalink)  
Old 02-27-2009, 12:30 PM
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Please find my reply in blue color.

Quote:
Originally Posted by guidance View Post
Dear memebers

I was on H-4 and then got my H1-B visa approval from Oct 1,2008. But since then I was not able to join any job. Now, as I have been out of job for more than 60 days what are the options for me to keep my H1-B.
Change of status within US might be tricky. Go out of the US and come back on H-4 visa. That is the simplest way out.

1) Our company attorney has advised us to file for H1-H4 change of status form. They will produce leave of absence since Oct 1,2008. But we are not sure about the denial rate and also as they are not providing any paystubs ,the relationship between me and my employer. And if the change of status gets denied will I not be able to enter US for next few years? and have to leave USA immediatly.

2) We also read on this forum about the option of re-entering US on H4 status. My passport is already stamped with H4 visa valid till Sept 30,2009. Do I need to get it re stamped or will just have to produce my existing H4 visa at port-of-entry. So what all documents do I need to carry with me to produce at port of entry. Also, which I-94 form should I use to go out of US. Also if I enter US on H4 status and in future I am able to get a job what procedure will I have to follow.
No need to get visa re-stamped. Carry all Pay Stubs and W-2s of primary H1-B. Submit all I-94 while leaving US. Last question is rather tricky. If you come on H4 and find out a job later what would happen. There are lawyers who say that H1-B remains in the dormant state for 2 years. If you happen to find a job within 2 years, you can file change of status from H4 to H1 and start working. I am not 100% sure in this regard though and you might want to check with your company lawyer.

Good Luck.

We found about the mess, only by reading post's on this blog--so thank you all for opening eye.

I cannot file complaint for that employers, as my spouse is working for same for almost 3 years and they are filing extension before sept 2009.

Would appreciate help, as if needed I will leave and re-enter as soon as next week, to minimize duration of my OOS status.
__________________
Came to US in 2001
First Labor - 2002 (BEC, job loss)
Second Labor- July 2005 EB3-I
I-140 - Approved
I-485 - July 2007 and pending
Filed 2nd labor in 2009
Filed 2nd I-140 in 2009
Ported the PD
GC in 08-2010 almost 10 years after coming to the US.
*****************************
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  #7 (permalink)  
Old 02-27-2009, 01:17 PM
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Quote:
Originally Posted by guidance View Post
Can she re-enter on H4 Visa, which is already stamped and valid till sept 2009, or even that is in not valid.
Yes, existing unexpired H4 visa stamp can be used for re-entry into US. This will her put in H4 visa status ri8ght away.

Please make sure that she has employment letter, latest pay slips for H1 spouse.

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  #8 (permalink)  
Old 02-27-2009, 01:18 PM
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Default

Quote:
Originally Posted by kumar1 View Post
There are lawyers who say that H1-B remains in the dormant state for 2 years. If you happen to find a job within 2 years, you can file change of status from H4 to H1 and start working. I am not 100% sure in this regard though and you might want to check with your company lawyer.
Incorrect.
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  #9 (permalink)  
Old 02-27-2009, 01:23 PM
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Thank you all for feedback!!.

I will try to make her go back and re-enter on H4-Status!!!

Do we see any issues in re-entry or it should be smooth.
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  #10 (permalink)  
Old 02-27-2009, 02:40 PM
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Proof please.

Quote:
Originally Posted by desi3933 View Post
Incorrect.
__________________
Came to US in 2001
First Labor - 2002 (BEC, job loss)
Second Labor- July 2005 EB3-I
I-140 - Approved
I-485 - July 2007 and pending
Filed 2nd labor in 2009
Filed 2nd I-140 in 2009
Ported the PD
GC in 08-2010 almost 10 years after coming to the US.
*****************************
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  #11 (permalink)  
Old 02-27-2009, 02:42 PM
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More on Dormant H1-B......


http://www.murthy.com/news/UDdormh1.html


Quote:
Originally Posted by desi3933 View Post
Incorrect.
__________________
Came to US in 2001
First Labor - 2002 (BEC, job loss)
Second Labor- July 2005 EB3-I
I-140 - Approved
I-485 - July 2007 and pending
Filed 2nd labor in 2009
Filed 2nd I-140 in 2009
Ported the PD
GC in 08-2010 almost 10 years after coming to the US.
*****************************
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  #12 (permalink)  
Old 02-27-2009, 02:45 PM
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Quote:
Originally Posted by kumar1 View Post
Proof please.
Well you asked me proof last time, I provided you the link from DOL site. This time, I am going to play other way. I ask you to provide you proof for what you wrote.

Do you have proof for what you wrote?
Your quote
There are lawyers who say that H1-B remains in the dormant state for 2 years. If you happen to find a job within 2 years, you can file change of status from H4 to H1 and start working. I am not 100% sure in this regard though and you might want to check with your company lawyer.
-- End Quote --

PS - I do have the proof that what you mentioned is incorrect.
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  #13 (permalink)  
Old 02-27-2009, 02:49 PM
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Quote:
Originally Posted by kumar1 View Post
More on Dormant H1-B......

http://www.murthy.com/news/UDdormh1.html
Last time when I provided a link from lawyer web site, you wrote this

Quote:
Originally Posted by kumar1 View Post
You being US citizen or president of USA does not mean much to us! I have requested you to show me "so called 30 day rule" on any of the official web site (For example USCIS). I have asked you this several times. Every time You just direct us to some lawyer's web site/university web site and expect us to believe them.

Show me the information on official web site and I will shut up.
What do you say about you quoting from a lawyer web-site?

BTW - You are incorrect about 2 year part, not about dormant part.
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  #14 (permalink)  
Old 02-27-2009, 02:53 PM
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Quote:
Originally Posted by kumar1 View Post
More on Dormant H1-B......


http://www.murthy.com/news/UDdormh1.html
This web-page is from 2002. Some things have changed since then. Do not assume what is valid in 2002 holds good in 2009 as well.

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  #15 (permalink)  
Old 02-27-2009, 02:58 PM
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First of all, I do not want to pick up a fight here. I have this to say about lawyer's site -- They are more reliable than university web site. Even lawyers disagree when it comes to interpretation of complex immigration laws. Yes, I remember you directing me to DOL and if you remember I never questioned your 30 day rule statement after that. I had issues with you quoting University web sites. Once again, that 30 day issue has been resolved.

Coming back to dormant state -- I have provided here everything that I knew. Also, I have mentioned that I am not 100% sure about it. Not sure, what else I can do in this matter.
Have a good day.

Quote:
Originally Posted by desi3933 View Post
Last time when I provided a link from lawyer web site, you wrote this



What do you say about you quoting from a lawyer web-site?

BTW - You are incorrect about 2 year part, not about dormant part.
__________________
Came to US in 2001
First Labor - 2002 (BEC, job loss)
Second Labor- July 2005 EB3-I
I-140 - Approved
I-485 - July 2007 and pending
Filed 2nd labor in 2009
Filed 2nd I-140 in 2009
Ported the PD
GC in 08-2010 almost 10 years after coming to the US.
*****************************
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