RFE H1B Transfer. COS to H4

R

rkothapa

Registered Users (C)
Hello,

I used to work for Company A on H1B visa which was approved until 09/2010. I was layed off from Company A in 12/2008. Company B then applied for my H1B. I got an RFE requesting for client letter and the deadline to respond to this is May 15th 2009. I cannot provide a client letter since I do not have a project currently. My questions are -

1) I have an option to get onto H4 visa. But, Is it possible to withdraw my H1B application which is pending RFE and then file for my H4 visa?

2) If my H1B application cannot be withdrawn and if it gets rejected, would I be eligible to apply for H1B extention or new H1B in future? I will be in H4.
 
rkothapa said:
Hello,

I used to work for Company A on H1B visa which was approved until 09/2010. I was layed off from Company A in 12/2008. Company B then applied for my H1B. I got an RFE requesting for client letter and the deadline to respond to this is May 15th 2009. I cannot provide a client letter since I do not have a project currently. My questions are -

1) I have an option to get onto H4 visa. But, Is it possible to withdraw my H1B application which is pending RFE and then file for my H4 visa?
-- If you attempt to withdraw, it puts a red flag on your profile. There are instances where it warrants USCIS to trigger fraud detection and handing over the case to the respective unit
-- If you do not have the client letter, then say so. Either USCIS will approve the petition (highly unlikely) or they will deny it. They will anyway deny it if you don't provide adequate evidence, but at least, the issue stops there
-- You can file for H4 but please remember that you should be in valid H1B status on the date of filing. Especially if the H1B is withdrawn by your previous employer, USCIS most likely will raise an RFE asking you to prove that you were on status at the time of filing I-539.

2) If my H1B application cannot be withdrawn and if it gets rejected, would I be eligible to apply for H1B extention or new H1B in future? I will be in H4.
-- Yes, but there will be increased scrutiny
Click to expand...

See above
 
Thank you JohnThomas82. I have one more question.

- Are paychecks required when applying for H1 to H4 transfer? We have all the paychecks from company A until 12/2008. But, after my wife got layed off, Company B filed for H1B transfer which is still pending and got an RFE. My wife did not get paid for the past 4 months as the H1 petition is still pending. Are paychecks required in this scenario to process the H1B to H4 transfer?
 
USCIS generally does not ask for paystubs when a person attempts to convert his/her status from H-1B to H4. They do ask for primary's pay stubs.

In your case, considering the background, I am almost certain that they will ask for pay stubs even in dependent's case. You will have to request USCIS to forgive the lapse in your spouse's history. It gets significantly complicated and your best bet is to have an experienced attorney handle it in a safe and successful manner.
 
Thank you JohnThomas82. This leads me to another question. Is it required that one has to be on payroll even while H1 transfer is still pending? Basically Company B was going to start offering her work once H1B is approved by USCIS.
 
You need to be working for either the old company or the new company while transfer is pending. In H1 status you have to work all the time.
 
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