H1B transfer, RFE, Denial and Options

I

itsmeusa

Registered Users (C)
Hello Gurus,

Please help me in this case.

1. Was employed with employer A. H1B VISA and I-94 had expiry date as 30-Jun-2008
2. Applied for H1B extension thru emplyer A. Approval notice was sent on 12-May-2008 to the employer A, thereby approving H1B extension from 25-Jun-2008 to 30-Mar-2010.
3. Before I could get this approval notice in hand, I found another job thru employer B and applied for H1B transfer using the old H1B petition which had expiry date as 30-Jun-2008.
4. H1B transfer petition received date - 29-May-2008 and receipt sent date is 4-Jun-2008.
5. Resigned from employer A on 6-Jun-2008.
6. Luckily received H1B extension paper from employer A on very last date - 6-Jun-2008.
7. H1B transfer thru employer B - received RFE - 11-Aug-2008 and USCIS requested additional evidence by 25-Sep-2008.
8. Chances of denial of H1B transfer are very high as USCIS requested additional evidence of company B financials, all W-2 forms for last year, B's latest tax return, contract with the end client, related itinerary, photos of interior and exterior.
9. B has started working on RFE.
What are my options if H1B transfer is denied?

1. Can I go back to employer A on valid petition approval with expiry date 30-Mar-2010?
2. Can I switch to employer C using petition approval with expiry date 30-Jun-2008? Do I need to make this switch before denial or after denial?
3. Can I switch to employer C using petition approval with expiry date 30-Mar-2010? Do I need to make this switch before denial or after denial?
4. Will I be out-of-status the day USCIS sent denial notice? Am I supposed to go back to India within 24 hrs? Is there any official period I can stay in US after H1B transfer denial? Please note that I have valid H1B petition with expiry date 30-Mar-2010.
5. What if emploer B wants to appeal this denial? Can I continue to stay in US and work on the same assignment?
 
1 -- You can work for employer A, only if employer A did not cancel their H-1B. Even in this case, you will have out-of-status issues as there is a period when you did not work for H-1B

2 -- it does not matter. In H-1B, there isn't anything called "Transfer" or "Switch". When a company applies for a H-1B on your behalf, it is always a new H-1B petition. Thus, in your case, your current H-1B petition with company B will have to be approved by USCIS. Even if you file many other petitions through other routes (company B is the employer), they all will have same result, i.e., all approved or all denied

3 -- Again, no "switch". Company C will have to apply for a H-1B on your behalf. The important point is that at the time of applying for that H-1B, you should be in valid non-immigrant status. This can be proved by showing pay stubs from company A, if you are working for them OR pay stubs from company B, if you are wrking for them. In either case, you must have been working legally for them, i.e., the employment supported by an approved H-1B by USCIS for the respective employer

4 -- At the time of denial, if you are not working for company A and solely dependent on approval from USCIS related to company B's H-1B, yes, you will be out-of-status. Technically, you should leave immediately. No grace period (sorry).

5 -- There are very limited circumstances in which a H-1B denial can be appealed. Even if the appeal is accepted, it does not provide you any specific work authorization because the case was denied earlier, i.e., you have to wait until the petition is approved. I am not sure if you can stay in the US when ther is a pending appeal in your case, someone else will have to comment further. If I were you, I would pray God that "Ginnu" or "Manwithnoname" or "TheRealCanadian" or few others who posted thousands of replies would comment.
 
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Immediately go back and continue to work for employer A. This may be best option for you.

JohnThomas82 said:
1 -- You can work for employer A, only if employer A did not cancel their H-1B. Even in this case, you will have out-of-status issues as there is a period when you did not work for H-1B
Click to expand...
 
itsmeusa,
Why do you think your H1 would be denied? Is the company that you moved (company B) not doing good? Did you not move to a company that is better then the previous company?

I say, just respond to the RFE and be cool. Do you think if you go back to company A, they would welcome you back with open arms?
 
What about consular processing? After h1b transfer with emp B gets denied, before my emp B receives the notice thru snail mail, I would apply for emp C and opt for consular processing with premium processing option. Would it not work in this case?
Please advise.
 
That might work. Company C's H-1B is purely based on that company's credentials. If they are good, USCIS might approve the petition and not the COS.
 
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