H1B position terminated while on disability

[SDEngineer 0]

Hi,

Two days ago my employer notified me that my position was eliminated effective immediately. I was on H1B with them, from Sep 2012 and valid for 3 years. To complicate things, I was off on medical disability leave since end of March, recovering from a major surgery. I still have a month before the next follow up and I expect doctors to extend the leave, but I may ask them to sign me off to go back to work. I may lose disability payments but I'll avoid delays if a new employer files for H1B transfer and want me to start as soon as they receive the notice of filing.

So the question - if my position is eliminated, I'm out of status as of 2 days ago. How does me being on California medical disability affect my future H1B change of employers application (provided I find an employer willing to file this soon)? I guess we'll have to send the payroll statements to prove I was employed until 2 days ago, but I've been receiving disability payments and my old employer couldn't pay me even if they wanted to as that would be illegal. Would USCIS accept statements from California disability payments + an employment / termination letter from old employer and treat that as if I worked and was getting paid by old employer directly?

Also, if I stay on medical leave for another 30 days, and find a new employer within 60 days, how does that affect things? USCIS doesn't care that I was hit by a bus and will deny application because I was out of status for too long? How long is too long anyway, as far as H1B transfers and gap in employment? I've found some information that under 2-3 weeks they usually approve change of employers, but over that (up to what?) they may approve a "loose" application, meaning I have to walk across the border, turn around and get a new I-94 at point of entry, even if my current I-94 is unexpired?

Thanks

[jan22 2,912]

I've found some information that under 2-3 weeks they usually approve change of employers, but over that (up to what?) they may approve a "loose" application, meaning I have to walk across the border, turn around and get a new I-94 at point of entry, even if my current I-94 is unexpired?

Thanks

Sorry to add to your troubles -- hope your recovery still proceeds well.

First, you already really know the answers to most of this -- you already indicated you knew you were out of status when your position ended. That's the starting point.

Key word in your discussion re new position is the word "usually" -- there is absolutely no grace period in which to change employers. USCIS "usually" grants a new position if there is a relatively short gap, but there are no guarantees.

And -- FYI, sorry but your current I-94 is not unexpired -- it became invalid the moment your position ended. To use it to re-enter the US makes you subject to people thinking about fraud.

[Boiler 43,676]

Can you get another job in a few days?

[SDEngineer 0]

Hi,

I'm already talking with recruiters and it shouldn't be too hard finding another position that qualifies, but you know how things are in senior IT positions - there are usually two interviews, decision makers are on vacations or too busy to get together for an interview, and so by the time they are ready to make an offer it's going to be a few weeks. I hope 4 or less, but it's not up to me, I can't force this to go any faster than it always does. Then they have to put together all the documentation, fly it by their lawyers, revise it, send it in and all that is going to add another week at the very least.

I don't mind walking across the border and returning the same day to get another I-94, I'm just trying to figure out how much time I have to get the new offer going without decreasing my chances of transfer approval because I failed to leave the country the next day after termination. If I leave, good luck getting another offer without attending an interview in person. Considering I lived here for the last 3 years, I can't show up at the border as a visitor and expect them to let me in? Or would they, if I present a letter from a perspective employer inviting me for an interview and tell them (the truth) that I go in for that purpose only and then plan to bug out and wait for their decision? Am a Canadian so it's not like I'd be flying from across the globe for this.

I had planned to travel out of country for 2 weeks but that's not an option now, I know I can't get back on H1B as it is not valid anymore, as jan22 mentioned. There go the non-refundable tickets.

Thanks

[SDEngineer 0]

An update to this - as I haven't been able to find a decent new employer that would file for transfer, we'll be leaving in a couple of weeks and will spend the summer in Canada. Then around September I'll start looking again and eventually find someone to file a new H1B. When that gets approved:

- Do I need to schedule an interview at the embassy or show up at port of entry with approval notice? My first H1B was issued in Sep 2012 and was valid for 3 years, would the new application be "transfer of employers" or a brand new application? If new, does it count against the cap considering I'd be within 6 years of first H1B?

- My total out of status time from termination until exit from the US would be a month and 5 days. Do you foresee issues with that? If you do, am I looking at issues with USCIS / approval or stamping at embassy / port of entry?

- If USCIS approves the H1B, can PoE guys refuse issuing I-94? In my experience western Canada PoE officers work extra hard in finding reasons to deny work permits (specifically TN1), it's almost as if they see everyone as taking someone's job down south.

- If H1B for some reason doesn't work out, I may go TN1 route (Canadian citizen). If I go from H1B to TN1 and then at some point down the road go for H1B again, and provided this is all within 6 years of initial H1B, will the new H1B count against the cap?

Thanks all