Legal Question in Immigration Law in United States

My friend is working with employer A and moving to a new company(Employer B) soon. HR director of employer B told him that his H1 and LCA has been filed simultaneously and the LCA got approved on June 4th. They also said that he would get his receipt number before 12 th and told him to put down papers so that he could join B on 15th.

He was lil skeptical about putting down papers before getting the receipt number. But he put down his papers but extended the joining date to 22nd. But he hasn't got the reciept number yet.

Question is:

1. Can H1 and LCA be filed simultaneously

2. Would he get his receipt number before 19th?

3. His last day with A is 19th. Uf he doesn't get the receipt number by 19th, would he go out of status

4. IF answer for #3 is yes, what can be done to maintain his status?

Would be really really thankful if you all could pour in some light on his situation! Thanks


Asked on 6/09/15, 10:42 am

1 Answer from Attorneys
Marlene Hemmings Marlene Hemmings, Attorney at Law

If by "H1" you are referring to the I-129 petition, then, no, the LCA must be certified before the I-129 petition is filed. They cannot be filed simultaneously, unless the employer means that the I-129 petition & the certified LCA were filed together (which they are required to do anyway, so doing otherwise would not be an option).

Receipt notices usually take 2 weeks, if not more. I would give any I-129 petition more time due to the fact that USCIS is working on the 90,000 new I-129 petitions filed for the next fiscal year.

A person technically can port once an I-129 is received by USCIS, however, it is always safer to wait for a receipt notice. Therefore, I cannot state that he would be out of status if he did not get his receipt notice by the 19th; it depends when the case was received by USCIS & assuming it is not kicked back for improper filing.

The only way to ensure legal status is to remain with employer A. However, that appears not to be an option in this scenario. I think Employer B needs an Immigration Attorney, & not an HR person, to handle these types of matters!

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Answered on 6/09/15, 11:13 am


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