Out of Status during H1 Transfer

Asked almost 2 years ago - Windsor, CT

I am joining a new company and my last day with current employer is 22nd March. New employer filed LCA on 15th March and I haven't received the approval yet. My new employer insisting to join on 25th march but by that time I may not receive LCA approval. So my situation is I may become out of Status during that period of last day from current employer to date of joining with new employer, will that be a problem during my Green Card processing if I become out of Status for couple of days?

Thanks in advance.

Attorney answers (4)

  1. Carl Michael Shusterman

    Pro

    Contributor Level 20

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    Answered . This could be a problem. If the H-1B petition is approved, but the change of employers is not because you are found to be out of status, you will have to go abroad to obtain a new H-1B visa.

    (213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration... more
  2. Alexander Joseph Segal

    Contributor Level 20

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    Answered . It is always great to stay in status. Falling out of status may result in a number of problems some of which are outlined so eloquently in my colleagues's post.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866)... more
  3. F. J. Capriotti III

    Contributor Level 20

    4

    Lawyers agree

    Answered . This can result in two problems:

    1. As you anticipated, with greencard processing ... this can be resolved by getting your greencard at a US Consul and/or exiting/re-entering the US with a new H stamp.

    2. You could be deemed out-of-status when filing the new H ... and the COS can be denied for that reason.

    See if you can stay with the old employer, or if the new one can file OVERNIGHT MAIL before the 22nd.

    Talk to the new company' immigration lawyer.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It... more
  4. Dana Roxana Bucin

    Contributor Level 15

    Answered . It is in your new employer's best interest to make sure they file for your H-1B transfer BEFORE your first day at work (March 25) or else THEY ARE VIOLATING THE LAW by making you start on March 25. From a practical point of view, you should talk to your new employer to make sure they are confident that theire petition will be filed before that date. If they don't already have an immigration lawyer (but I think they do since you mentioned they already filed the LCA), I would tell them to consult with an attorney about requiring you to start March 25. This might be a problem not only for you but for them also.

    This answer is provided for general education purposes only and is not intended to provide, nor does it provide,... more

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