H1B Denial - what are options

[desi3933]

Originally Posted by sravi124

Does any employer will consider for a new H1 Transfer, if i tell that my H1 Transfer is denied, and what docs/info is required to do a H1 Transfer again?

You are out of status and any H-1B transfer application will be, most likely, denied. I suggest that you read the memo pdf I have posted above.


_________________
Not a legal advice.

[Wish_Good]

Hi Elaine,

Iam in the similar situation.

My I-140 approved -Jan 22, 2009 with company B, 7th year of my H1 ending July 2009, Current company B applied H1 extension, But denied based on Old "Company A" I-485 - which is denied (June 26th 2008) because of underlying I-140 denied due to 3yr degree.

Now Current Company applied MTR in March 2009. Still I have valid H1 upto July 2009.
my question is Can I apply one more H1 extension in premium processing with this SAME company before my H1 expires.

Please give me your valuable suggestion.

Thanks a Lot.
Wish_Good.

[shinobu]

Hi all,

This is my first time posting, so my apologies if I get some of the formatting wrong. There has been some good discussion on these points, but I'd like to add the following comments:

1. It is not always obvious whether or not you are "in status" or "out of status", simply because an H-1B "transfer" petition was denied. That's because the term "out of status" is often used to mean different things.

Generally speaking, there are two different ways one can be "out of status", one way is really really serious. The other is not quite as serious:

(a) Less serious - You can "violate" the terms of a nonimmigrant visa status (e.g., working for someone you're not supposed to be working for, or failing to work for the employer you are supposed to be working for). Such violations can be serious, but are not necessarily terminal. The consequences can be serious, but not necessarily "fatal."

Typically, it means that you cannot have a COS or EOS request approved, and/or you cannot file for employment-based adjustment of status without first correcting the problem. (And even then, there are exceptions in the law, such as INA section 245(k), which may let you correct such "status" problems in the United States, without the need for international travel.

Usually (but not always), "violation-based" out-of-status problems can be fixed by leaving the country with an approved and valid nonimmigrant visa petition, and returning with a proper visa. Sometimes (but not always) this can even be the same visa already in your passport.

The point is that "violation-based" out-of-status problems are often correctable, assuming that you can ultimately get a nonimmigrant visa petition approved for you, or you can file an I-485.

(b) Really serious - You can "overstay" the date listed on the I-94 card placed in your passport. This is a MUCH bigger problem. It cannot always be easily cured, particularly if such "overstay" occurred for more than 180 days past the listed date on your I-94 card.

2. The reason why all this matters, in the context of this thread, is that you should not always give up hope when an H-1B transfer petition is denied. Under the facts presented in this thread, it is entirely likely that the "extension of status" component of any new H-1B petition will be denied, unless the beneficiary can show that s/he was lawfully maintaining status, and was not working for an employer without authorization.

HOWEVER, if a new H-1B employer is willing to file a new H-1B petition, and simply request "consular processing", rather than EOS or COS, then that new H-1B petition might well be approved. The cost, usually, is that you'll have to travel outside the United States to "activate" the new H-1B petition (typically but not always by getting a new visa).

This matters, because I don't want the OP to think that hope is necessarily lost. As long as the date on your original I-94 card has not yet expired, then you have not yet committed the "big" out-of-status problem. That means there may be hope in sticking around to see if the same H-1B employer (or a new one) can file a new petition, and see if it gets approved. I'm not saying there is nothing to worry about. I 'm not saying your second (or third) attempt will be approved.

What I am saying is that these laws are so complex, that no one should assume "all is lost" -- or conversely, that there's "nothing to fear" -- simply because a memo or a regulation or statute says one thing or the other. Trying to predict an immigration law outcome, based solely upon a CIS memorandum, or regulation, or statute, or case, is in advisable. It's like trying to understand human anatomy based solely upon study of the skeleton, or the nervous system, or the cardiovascular system. A doctor cannot assess a patient's situation by studying only one of these aspects. They all integrate into a whole, and only through an analysis of all the separate parts -- and also how they integrate together -- can one provide a prognosis.

To summarize, the OP should go to an independent (not necessarily the employer's), immigration attorney in his locality, bring a copy of all the paperwork, and see what, if any, options exist.

Based upon what I've read in this thread, it's not obvious that the OP is so "out-of-status" that the situation can't be fixed. There is value to filing an MTR, and there is value to re-filing a petition, as long as there's a viable employer to be found. The really really big thing to watch out for is the I-94 expiration date. Don't ever let that expire with you still in the country.

[sravi124]

Hi Daniel,

1. My I-94 is 07/11/2009. If i file for a new H1B Transfer, can i stay in US & work when my case is pending?
2. Today i discovered that my Wife Employer had closed the company and i cannot reach him any way. What should be my next course of action.

[Wish_Good]

Hi Daniel,

Thanks for your posting which helps all members
of this forum.

I request, Please shed some light on these two questions:

1. While H1 - MTR (Appeal) is pending for decision. My Stay is considered legal stay ? Can I continue to work in this project until I get decision on my H1 MTR.
2. As my I-94 expires in July 2009. Can I apply one more H1 in premium processing with same employer?


Thanks a lot in Advance.
Wish_Good.

[shinobu]

Hi Ravi,

1. Usually, you can do this, but the safest way to use the AC-21 "H-1B transfer" rule is to request an extension of your status at the same time you file the "transfer". But to request the extension, you have to show that you've been maintaining your lawful H-1B status. I'm not sure if you can do this under the facts you've stated.

Thus, you may need to file the H-1B transfer without requesting an extension. But that means it's not clear if you can work while the petition is pending.

The statute indicates that you only need to have an H-1B petition pending, and not an extension of status request pending, in order to work in the interim, but the USCIS has recently informally discouraged the interpretation that you can work on an H-1B transfer without also requesting an extension of status. (And this, again, requires that you prove you've been maintaining your status.)

It may be safer to simply hold off until the new H-1B petition is approved, use premium processing to shorten your "down time", and then be prepared to travel outside the country once the new petition is approved. Usually, but not always, this will require that you apply for a new H-1B visa at a US Consulate.

2. I'm not sure I understand this second question. What does your wife's employer have to do with your H-1B status? If she has H-4 status, it doesn't matter about her old H-1B employer. If she currently has H-1B status, then she needs to determine whether it's safer to try to gain H-4 status (either by filing COS, which she may not qualify for, or by leaving the US and obtaining an H-4 visa). If she feels very confident she will find another H-1B sponsor right away, she might instead decide to wait out her current I-94 card expiration date in the US until she can find a new H-1B employer.

But doing so may have consequences - this is not an easy or obvious decision. She needs to book an immediate appointment with an independent trustworthy immigration lawyer (who is expert on these kinds of business issues) in her locality. (No, you don't have to retain an immigration lawyer in your metropolitan area, but when the chips are down, it's nice to be able to speak to someone "face to face.")

In short, these are complicated facts. It's good to get some basic advice on the internet, but you and your wife need to professionally retain an independent immigration attorney at this point.

[shinobu]

Originally Posted by Wish_Good

Hi Daniel,

Thanks for your posting which helps all members
of this forum.

I request, Please shed some light on these two questions:

1. While H1 - MTR (Appeal) is pending for decision. My Stay is considered legal stay ? Can I continue to work in this project until I get decision on my H1 MTR.
2. As my I-94 expires in July 2009. Can I apply one more H1 in premium processing with same employer?


Thanks a lot in Advance.
Wish_Good.

1. An MTR, in and of itself, will not allow you to remain lawfully in the US. If you had requested an extension of status, and if your MTR is approved, then you'll end up OK, but it's not because the MTR itself "anchored" you here, it's because you took a gamble and succeeded. You should not work for the employer who sponsored you for the denied H-1B petition until the MTR is successful.

You may decide for this reason that it would be easier (and certainly faster) to simply refile the H-1B petition under premium processing. However, even that new H-1B petition will not necessarily give you a period of authorized stay past July 2009, where there has been a prior denial. In other words, the USCIS will not allow you to simply "string together" EOS applications past the expiration date of your original I-94 card, and thereby maintain lawful presence. But if you re-file for EOS and get an approval on this second attempt, you should be OK. Unless you feel very confident the USCIS "screwed up" in their denial, you may decide it's safer (and again it's certainly quicker) to simply refile.

That said, no amount of paper-filing will keep you lawfully in the country for long without an approvable case.

2. Yes, you can always apply a second time. However, if you do not successfully the address the concerns raised in the first denial, it may turn into a waste of time and money, so be careful!

[Wish_Good]

Hi Daniel,

Thanks a Verymuch for your valuable advise.


wish_good.

[Wish_Good]

Hi Daniel,

Thankyou Very Much for your valuable Advice*

Wish_Good

[sravi124]

Hi Daniel,
Thank you very much for your extended support.
One question, when i Appeal, can i WORK?
thanks, Ravi

[nish]

Hi.

I came to us on L1B visa and valid upto 2009, this year i applied new H1 (consular processing) visa and got approved by uscis .Now my comapny is asking me to come back to
india(L1 issued company).I have H1 visa which is valid after 1st of october,2009 only.If i am not going to india they will cancel my L1.So
can i legally eligible to stay here without L1(If they cancel if am not showing intrest to goback to india) and with approved H1 visa .

Please clarify me i will stay here upto august 15 th.If i am not going back to india my
L1 issued company try to cancel my visa.If they cancelled can i eligible to stay here with Approved H1 papers (between July 15,2009 to Oct 1st 2009).

My new consultant told me that i can eligible to stay before 60 days without any visa.

1. I have H1 approved and if i do COS through premium processing then will i eligible to stay in US after August 15 if i put resign from my current company (L1 Visa)

2. If i am not eligible to stay in US on approved H1 before oct 1 for more then 1 month then is there any option for staying over here.

Kindly If anyone come under this situation then please reply me and help me out.

Daniel : Can you Please give me suggestion for above mentioned query

[Wish_Good]

Hi Daniel,

Thanks a lot for your earlier valuable advice.

Once again I request for your Suggestion...

In continuation to my previous post. Instead of applying one more New H1 Extension with same company. If I apply from Different Company. During the transition period (after my present H1 valid july 2009) will my stay is considered as legal stay and also can I continue work ?


Thanks in Advance
Wish Good.

[mach1343]

Hi,

Can someone please reply to my question.

Recently I got my project ended with a client and the consulting company which I am working for gave 2 weeks of bench and then terminated my employment, they are telling me that you have 30 days before your H1 get revoked.
So at this point what are my options?
1. Can I transfer my h1-b to another company?
2. During this trasnfer process if I get a project then can I work on that project while the transfer process is pending?
3. What if I got a RFE and during this process can I work?


My H1-B got extended for three yrs last year (EB2-140 approved)

Thank you
MK

[nousername]

Sorry to hear about your situation.. Here are the answers..
1. Yes, you can transfer your H1 to another company
2. Technically during this transfer period (i.e. now days) you are out of status so no, you can not take up any project. Once you get a new job and your H1 is transferred you can take up the project.
3. Answer in point 2. You might get RFE while applying for a transfer but that is least of your worry for now.. Just go and look for a job.

Also, there is no such thing as "H1 to be revoked in 30 days".. By law your H1 is gone the second you were asked to leave. Always remember "H1 - JOB - JOB Description" have to be same to be in status.. Any of the element changes will effect your status.

The period you are in is kind of gray area.. I have been there couple of times and only once (after a gap of 2 months) I was asked to leave and re-enter the country..

Anyway, long story short, go and find a project and do not take any short-term project in between without H1 process. Also, did you fly for your i-485?

Originally Posted by mach1343

Hi,

Can someone please reply to my question.

Recently I got my project ended with a client and the consulting company which I am working for gave 2 weeks of bench and then terminated my employment, they are telling me that you have 30 days before your H1 get revoked.
So at this point what are my options?
1. Can I transfer my h1-b to another company?
2. During this trasnfer process if I get a project then can I work on that project while the transfer process is pending?
3. What if I got a RFE and during this process can I work?


My H1-B got extended for three yrs last year (EB2-140 approved)

Thank you
MK