H1B Transfer Case not accepted

rmshah50

Registered Users (C)
I too have been a victim of transfer case. But, mine is somewhat unusal since the NSC has not rejected the case, but haven't accepted it. They returned the case after 11 1/2 months.

I moved from Company A to Company B in March 18th, 2005 and filed for H1B Transfer. Company A was a non-profit organization. While working for Company A, I had to file for an H1B extention since my first H1 was only for 1 yr. and 9 months. When I filed for extention with company A, in the 129 W form in part B and part C, we did not selected it to be a non-profit organization. My H1 was approved. When I moved to Company B, we filed it has a Transfer, based on the forms filed during my 2nd H1 Extention. On march 02, 2006, they returned the fees saying that this case is subjected to H1 Cap and there are no H1 available at this time.


Its been a year now and I am in no position to go back and work for Company A. USCIS took 11 1/2 months to make that decision that it is a cap case. During this 11 1/2 months we tried to contact them by phone, written letter and Congressman's office help, but they did not responded. On top of all this we also filed for premium processing in november'2005 and they send back the fees saying that we cannot process the case due to "unforseen circumtances". My Attorney asked for the unforseen circumtances and no response.

Now there are several points where USCIS has mishandle this case.

1) It took them 11 1/2 months to make the decision that this is a Cap case.

2) When I filed my 2nd H1 Extention for Company A, they should have raised RFE that this is a non profit company and the 129W wasn't filled in properly.

3) When they approved the 2nd H1 Extention, indicates that they have issued me H1 from the CAP.

4) Even when we asked for premium processing they would have told us that the case cannot be accepted and we could have refilled since the H1B Cap was open for Master's Degree Quota.

My attorney has refile the case on March 8, 2006 with detailed explanation Hoping they accept it.

I know , it is a long post, but this would help someone who would post their suggestions.

My question are:

1) Can I still work with Company B.( My attorney says YES).

2) If they don't accept the 2nd time as well, what could be done?

3) Can I appeal to AAO or Federal Court? How much time does it take and While the appeal is pending can I still work?

Any input is appreciated.

Thanks,
-rmshah5
 
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