Legal Question in Immigration Law in California

Re: H1 Status

We attorneys continue to get your questions about two months late on this site, so I have to apologize ahead of time!

Your situation is tricky. Technically, your H-1B status ends as soon as you were laid off on Feb. 1. It didn't matter that your employer didn't notify the INS to revoke your H-1B. Whether your new H-1B petition will be approved by the INS will depend on the particular examiner, or luck. If they require you to provide paystubs up until the date the petition was filed, March 9, then you obviously won't be able to supply those. In that case, your change of approved employment application will most likely be denied, even though the new H-1B petition by the new employer is approved on the merits. You'll have to leave the US and come back to your home country to get a new H-1B visa from the US consulate.

On the other hand, if the INS examiner doesn't ask for the paystubs (they think you're still working for the old employer), and the new H-1B petition by the new employer is approved on the merits, then the change of employment application will be approved, and you'll be issued a new I-94. You won't have to leave the US then.

I should mention that you could have started working for the new employer after the petition was filed with the INS. The employer (or its attorney) should have proof of delivery to the INS even without a WAC receipt # back. If the INS issues a finding that you didn't maintain valid H-1B status, i.e., a negative decision, then your unlawful presence starts on the date of this negative finding.

Liem Doan, Esq.