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Immigration Issues/Special Case for Porting H-1B

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Question
Thank you for your prompt response.

In case the petition got denied following commencement of employment at company S, am I legal to stay in US waiting for the export license approval? Can I still work for company D after the export license is granted?

Thanks,

Hank

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Followup To

Question -
Hi Mr. Hollander,

I began working at company F in July 2004 using CPT. I got H-1B on October 1, 2004.

I was laid off in December 2005. Then I successfully changed to F-2, because my wife was on her OPT at that time.

In late April 2006, I got an offer from company D, and got H-1B approval and new I-94 in May. But I have not worked at company D for even one day, nor did I get a paycheck, because I need Export License to work there. So I have been awaiting this license for months, and there are cases that some applicant for this license at company D have not got response for more than 10 months.

So I began to look for jobs again, and two companies(N and S, both requiring no export license) are asking me to do on-site interview.

Suppose I accept an offer from company S, and I will only work for company S even after the export license is approved later. The portability provisions allow me to begin working for company S as soon as company S files an H-1B petition for me. My questions are:

1. Pay-stubs should accompany the petition by company S. Since I do not have them with company D, how likely will the petition be approved?

2. In case the petition got denied following commencement of employment at company S, can I still work for company D after the export license is granted? In order to work for D, should I go back to my country and get a new visa? In order to work for S, should I go back to my country and get a new visa?

Thank you very much,


Answer -
I would not leave the country unless absolutely necessary. Company S can try applying for you without paystubs - I have never been asked for stubs yet, but I know other lawyers that have. If they ask for stubs, there is a good chance they will deny the petition. If they do not ask for stubs you are good to go.

Regards,

Robert

Answer
Yes, but you can not ask to recapture that time or they will say since you did not work you were out of status and also say that they may have approved your case in error, since if a license is needed you should have had it when you applied.

Regards,

Robert

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