When to send in wife for H-4 Visa stamping. In middle of changing employers and laid off

[nickyoung 0]

Hello everyone, 
I am caught in a strange situation and need your advice in order to take the next steps.
My situation:
I was laid off by my company in August end and they have kept me on payroll til 28th oct 2018. My wife went to India for L-1b stamping but got denied. Her h-4 visa stamp is expired so in order to come back she needs the stamp. She was working in another state with H-4 EAD. I have found a new employer and they are working on my H-1B transfer right now and they plan to file it by the end of next week.

There are conflicting ideas that I have got from two separate attorneys

1. My wife's employer suggested to schedule a H-4 visa interview appointment asap and preferably before 28th oct so I can use the same I-797
2. My new employer's attorney said that I should wait for them to file for the extension and take the filing receipt, H-1b transfer petition and then send my wife for stamping along with old I-797

 

Based on this I wanted to know what I could do to bring my wife back. Visa transfers are taking long time and she maybe stuck in India for more than 6-8 months which I am trying to avoid.

 

You inputs are appreciated

 

Thank you

[cd37 229]

49 minutes ago, nickyoung said:

Hello everyone, 
I am caught in a strange situation and need your advice in order to take the next steps.
My situation:
I was laid off by my company in August end and they have kept me on payroll til 28th oct 2018. My wife went to India for L-1b stamping but got denied. Her h-4 visa stamp is expired so in order to come back she needs the stamp. She was working in another state with H-4 EAD. I have found a new employer and they are working on my H-1B transfer right now and they plan to file it by the end of next week.

There are conflicting ideas that I have got from two separate attorneys

1. My wife's employer suggested to schedule a H-4 visa interview appointment asap and preferably before 28th oct so I can use the same I-797
2. My new employer's attorney said that I should wait for them to file for the extension and take the filing receipt, H-1b transfer petition and then send my wife for stamping along with old I-797

 

Based on this I wanted to know what I could do to bring my wife back. Visa transfers are taking long time and she maybe stuck in India for more than 6-8 months which I am trying to avoid.

 

You inputs are appreciated

 

Thank you

I think you cant use old 797 for any visa stamping since you are no longer employed. Ask your employer to file for premium h1b and once its approved ask your wife to go for h4 stamping with new 797.

[nickyoung 0]

Just now, cd37 said:

I think you cant use old 797 for any visa stamping since you are no longer employed. Ask your employer to file for premium h1b and once its approved ask your wife to go for h4 stamping with new 797.

Thank you for the reply. But if I am getting regular bi-weekly paycheck till the end of the month does that mean I am still unemployed? also the premium processing is suspended till feb mid so that is far away

[cd37 229]

2 minutes ago, nickyoung said:

Thank you for the reply. But if I am getting regular bi-weekly paycheck till the end of the month does that mean I am still unemployed? also the premium processing is suspended till feb mid so that is far away

If that is severence package they are giving you then its not employment. Did you actually work for those ours ? I know lot of consultants do this but its still illegal. Just my 2 cents.

[nickyoung 0]

no, severance package will be one time payment followed by the last paycheck

[nickyoung 0]

5 hours ago, cd37 said:

If that is severence package they are giving you then its not employment. Did you actually work for those ours ? I know lot of consultants do this but its still illegal. Just my 2 cents.

So on my package it explicitly says that last day of employment is 29th oct. Also, I generated a report from equifax ( the work number ) my employment status is still active there. 

[cd37 229]

5 hours ago, nickyoung said:

So on my package it explicitly says that last day of employment is 29th oct. Also, I generated a report from equifax ( the work number ) my employment status is still active there. 

In my opinion, it is still looked at as misrepresentation if you are not working and getting paid and go for h4 stamping. I am sure a good lawyer wouldnt advise for this. I would suggest to follow what your new employers lawyer says, why to care what previous employers lawyer says, they laid you off, no reason to trust them. Good luck.