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I got laid off while on an H1B visa on 28th Sept 2012. What are my options to maintain a legal status?
Anonymous4 views3 answers
How many days of grace period do I have? Does the clock start ticking on last day of work or the day I receive my last pay stub? If I find an employer who is ready to transfer the H1B, in how many days this should be done? If I do not find an employer soon, is it a good option to transfer to F1 visa, and if so in how many days should this be done?
Also, if I apply for an F1 status and get a job with an employer willing to file for my H1B visa while the F1 petition is pending, can I revoke the F1 petition and apply for H1B instead?
Giacomo Jacques BeharImmigration AttorneySan Diego, CACA licensed ·
In the past, I have had clients in the same situation as yours and who, having found a new employer applied for a new H-1B weeks, and sometimes months after having been laid off. It's a matter of luck, and unless USCIS asks you for the copy of your last 3 pays tubs (only the CSC engages in this practice from time to time), you'll be okay. You will not be counted against the cap since you are now in H-1B status.
There is no such thing as a "grace" period. It is unclear and vague in the law. The "clock" starts ticking as of the date of your last pay stub.
Your new employer should file ASAP. Since you are already in H-1B status (even months from now), you should start working for your new employer as soon as the USCIS case acknowledgement receipt arrives. I do not recommend filing Premium Processing on a change of employer petition, unless your employer will not somehow make you reimburse him.
If you decide to apply for a COS to F1, and find a new employer in the meantime who applies for an H1B for you, it is always advisable to file it Premium Processing Request Service, lest the COS decision arrives first and it is a denial. In such as a case, USCIS will refuse to approve a new H-1B for you, for it will deem that you are out of status and thus must go to a consulate abroad and apply for an H-1B visa (instead of COS to H in the US.)
Good luck!
Unfortunately, there is no grace period. You are out of status from 9/28/2013. A new employer can file a new H1B petition for you, but it has to be for consular process.
There is no grace period. The longer you wait the more likely it is that USCIS will not overlook the out of status and will require that you leave the US and reenter with the proper visa stamp.
