H1B portability question

[SDEngineer 0]

Hi,

I was on H1B with my last employer until mid May, when my position got eliminated. As I was immediately out of status, I've packed my bags and left for Canada. I surrendered my I-94 to Canadian border agents on exit from US. While there, I entered US as a visitor a few times for same day shopping, no problems.

A couple of weeks ago, I came to US as a visitor for a job interview. I'm a Canadian citizen and do not have I-94 as they don't issue those to visiting Canadians. My new prospective employer is interested in applying for H1B for me, and are willing to file for expedited processing so I can start working as soon as we get USCIS receipt by email. However their legal adviser is saying I can't start working with only the USCIS's H1B application receipt because I've left the country after my last H1B job ended, and according to him H1B portability doesn't apply anymore.

I've found this article that claims the opposite to be true : http://www.nolo.com/legal-encyclopedia/h-1b-portability-how-workers-can-change-employers.html

According to it :

Another scenario is for someone who is outside the United States. If that person still has a valid H-1B visa from a current or prior H-1B employer, he or she can use that visa along with the Receipt Notice (USCIS Form I-797) for the new employer's H-1B petition in order to enter the U.S. and start working.

So : I'm here as a visitor, and I have previous employer's I-797B. If we file for H1B premium processing, I could (according to the article) walk over to Mexico, turn around and present the US border agents with my passport, old I-797B approval notice, USCIS receipt for the new H1B and be issued H1B I-94, and start working the next day?

Not sure if it matters : I do not have an actual H1B visa stamped or glued in my passport, because I was already working for the same employer on TN1. When we received I-797B, I walked over to Mexico, turned around and PoE officer issued new I-94 that reflects H1B status, and took away I-94 with TN1 status.

Thanks

[jan22 3,062]

The lawyer is right. (Hard to believe, but sometimes they are!)

The problem is stated in the information from the link you copied: "Another scenario is for someone who is outside the United States. If that person still has a valid H-1B visa from a current or prior H-1B employer". As it says, :....If that person still has a valid H-1B visa...". You don't. Your visa/status ended when your position was eliminated in May. You problem are cap exempt, which means they can process and get an H1B approved for you, but you will need to wait until all is approved and you can enter with the new, approved I-797.

[SDEngineer 0]

The lawyer is right. (Hard to believe, but sometimes they are!)

The problem is stated in the information from the link you copied: "Another scenario is for someone who is outside the United States. If that person still has a valid H-1B visa from a current or prior H-1B employer". As it says, :....If that person still has a valid H-1B visa...". You don't. Your visa/status ended when your position was eliminated in May. You problem are cap exempt, which means they can process and get an H1B approved for you, but you will need to wait until all is approved and you can enter with the new, approved I-797.

Let's clarify whether visa and status are two different things, I believe they are : Once you have an H1B visa, you still have to enter the country (or adjust within the country) to be granted H1B status. You could, in theory, get H1B visa with a start date of October 1, but show up at PoE in June, enter as a visitor on B1/B2 to go to Vegas, leave in a week and then come back on October 1 and enter in H1B status? So visa and status must be different animals?

Also, if you quit one H1B job and apply for another with premium processing within a few days, USCIS may approve the new application and you can start the new job because you have a valid visa and you were out of status for a few days? I know people transfer H1B jobs with a couple of weeks gap all the time, and so they are out of status during that period, but apparently visa is still valid, otherwise USCIS wouldn't approve the new job?

If a H1B visa became invalid in the case of terminated employment, then no one would ever be able to start another H1B job based on the same visa, which is valid for up to 6 years? You get counted against the cap once, then all subsequent H1B applications within the next 6 years are cap exempt, meaning your visa is valid? Every time you are approved to work for a specific employer in a specific job capacity, you enter or adjust into the H1B status?

Related to this, there apparently are cases (googled around the net) where people were on H1B for a few months or a year, then left the country or stayed / worked in a different visa or status (TN1, F1 etc.) and then a couple of years later applied for a H1B based on the original visa, and had that approved.

Thanks