Rfe on h1b transfer because of previous incorrect h1b approval

Gautam123

New Member
I believe I have a unique case in which USCIS has first approved my case but now realized that they may have made mistake in the past when reviewing my H!B transfer request. What are my options? Here are more details:

I graduated from US university with a STEM degree Dec 2012 and began working on OPT from Feb 2013. Company A has filed an H1B in April 2014, which was picked up in the lottery but subsequently was issued on RFE on July25. This RFE was responded to on Oct 7. After this, I found an opportunity with Company B, which filed a fresh H1B petition using the receipt number from the H1B filed by Company A on Nov 24 via Premium processing. At this time, the original petition was still under review and the new petition clearly stated that I have an existing petition which was issued an RFE, responded and is in review. This petition from company B was approved on Dec 3. Since the petition was approved, I joined this company B and started working from Dec 22. Later, I got to know that the H1B petition from employer A was denied. Since I already had the approval from employer B, I thought I should be okay and was not bothered about the denial. My H1B extension petition was also filed in April 2018 and received approval on Jun 2018.. which is valid till Oct 2020.

In Jul 2018, It so happened that I found and accepted another job with Company C. Company C filed my H1B transfer on Jul 30 2018. USCIS issued an RFE to this application saying that I was not cap-counted in 2014 as my first H1B petition from employer A was eventually denied. When I checked my notes, the attorneys from Company B clearly told me in 2014 that they can use the cap number that was used by the previous employer and they were 100% sure about it. But my current attorney from Company C, says that that was wrong . Company C attorney also says that USCIS may have erroneously approved the application earlier and may revoke it(the approval with company B) now altogether. Is this possible at all?

So, right now, I don?t know which attorney to believe or what course of action to take. Looks like the attorney from company C has concluded that there is no way they can defend the situation since they tell me that RFE says that the USCIS believes that I was not subject to cap in 2014 and hence cannot be treated as a cap-exempt for this H1B Transfer.

I am really confused and worried that things have gone south when I applied for this transfer and need some guidance on how to proceed.
 
I agree with employer C's attorney. Employer A's H-1B was never approved, therefore no H-1B number was allotted from quota & USCIS approved employer B's H-1B in error. It was changed for short duration but then reverted back to F1 since H-1B is denied. Technically your status was never changed from F1. I believe either you have to extend F1 by re-enrolling in university or do change of status to some other status B1 or leave country.
 
Thank you for response. Is there a rule on the rulebook that clearly states this? ie. the first application's result supersedes the second applications's result irrespective of the timing of the result? i have never tried to hide anything in the applications and the 2nd application clearly stated that I've an existing H1B pending. Also, USCIS has also approved the recent extension of my H1B with employer B. My point is that if USCIS has not caught this, my company B attorney has not caught this all the while, Do I have any ground to request USCIS to act in good faith and confidence, given this is a mere technicality and all other aspects of my application were accurate?
 
Well you thought it is better idea moneywise or career progress thats why you went with employer B without realizing consequences what if employer A's H-1B is denied. I believe attorney at employer B should have catched this but I am afraid it is too late. Even if you take good faith mistake by USCIS at employer B, you need to realize H-1B was never approved or number was never captured for USCIS to approved employer C.
 
Thanks for your response and sharing your insights.

I researched the entire rulebook for filling the I129 form(the H1B application). File is attached.
Page 11 and 12, section 7 talks about claiming cap-exempt if "The beneficiary of this petition has been counted against the regular H-1B cap or masters cap exemption; and"

So, Looks like my attorney at Company B implied the tern 'counted' in the above sentence literally and used the receipt # of the first application and claimed cap-exempt on the petition, which is not entirely incorrect as I am cap-counted as it was picked in the lottery and the H1B was NOT denied when this application was filed. I believe the guideline itself is little open-ended. i.e the guideline doesn't say explicitly that the first H1B needs to be approved so that the next H1B can claim cap-exempt. OR is there is a specific rule which says that explicitly that I did not find or read ?
All other aspects of my application are perfect as I had full-time roles with product based companies which exactly matches the skills and expertise that I have. There was no willful misrepresentation or unlawful presence in my history. Would this grounds to ask for consideration and allot me a unused number, given the entire context of my application?

Any additional insight would be appreciated immensely.
 

Attachments

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That first application was never approved therefore you were not assigned a number from H-1B quota, & that is exactly what USCIS is saying in employer C's petition. If a number was assigned then future employers can file subsequent amendments, extensions or change of employer petitions
 
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