H1B Extension Denied - But H1 Transfer Before or After Appeal?

[arukala]

Hi,

My First H1 Extension was Denied on 01/29, My current employer is appealing the denial with USCIS. Denial is based on Company's (Is US Employer or Agent) and LCA is Invalid and Specialty Occupation.

But I found another company B to sponsor H1 Transfer with Premium. But Company B has following concern.
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Is it advisable to delay the submission of that until the current employer’s appeal has been submitted and logged into the USCIS computer system? We are concerned that a transfer request immediately submitted under Premium Processing might arrive at the USCIS before the appeal has been submitted and that the new petition might be denied also on the basis of the previous employer’s petition still showing a case status as “denied” and no appeal having yet been made.
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FYI: My H1 and I-94 Expired on 09/30/08.

Thanks in advance for your input.

-Ravi

[wandmaker]

Originally Posted by arukala

Hi,

My First H1 Extension was Denied on 01/29, My current employer is appealing the denial with USCIS. Denial is based on Company's (Is US Employer or Agent) and LCA is Invalid and Specialty Occupation.

But I found another company B to sponsor H1 Transfer with Premium. But Company B has following concern.
------------------------------------------------------------
Is it advisable to delay the submission of that until the current employer’s appeal has been submitted and logged into the USCIS computer system? We are concerned that a transfer request immediately submitted under Premium Processing might arrive at the USCIS before the appeal has been submitted and that the new petition might be denied also on the basis of the previous employer’s petition still showing a case status as “denied” and no appeal having yet been made.
----------------------------------------------------------

FYI: My H1 and I-94 Expired on 09/30/08.

Thanks in advance for your input.

-Ravi

What Company B is saying is correct. You should wait until the appeal shows up in USCIS system otherwise your new H1 transfer application will be denied for the fact that you do not have any visa status to transfer from.

[sri1234]

Originally Posted by wandmaker

What Company B is saying is correct. You should wait until the appeal shows up in USCIS system otherwise your new H1 transfer application will be denied for the fact that you do not have any visa status to transfer from.

Hi i am in the same boat, my h1 extension got denied, we filed MTR and appeal shows up in the status.
Now if i go for a 2nd employer will i get new I-94 with that H1 or should i go out of the country to get visa stamped.

Please advise

Sri

[wandmaker]

Originally Posted by sri1234

Hi i am in the same boat, my h1 extension got denied, we filed MTR and appeal shows up in the status.
Now if i go for a 2nd employer will i get new I-94 with that H1 or should i go out of the country to get visa stamped.

Please advise

Sri

It depends on your denial reason.

[sri1234]

Originally Posted by wandmaker

It depends on your denial reason.

the denial reason was NO End Client Letter.

There is a letter of contract and other documents from the Prime Vendor but not End Client.

So in the above case if i find a 2nd company will i get new I-94 with H1?

Thanks,
Sri

[vi75]

My case is similar to your, but only difference is that i still have valid H1B till Sept 2009. My existing employer has recieved the denial letter. He says that there is some problem with the designation and it the extension has been rejected. My I94 expired on Oct 2008. Can i transfer my visa to another employer at this point of time. i have a job and visa for 7 months. plz help.

[sahayam]

Hi,

i am in the same situation. what is the solution.

[arukala]

Originally Posted by vi75

My case is similar to your, but only difference is that i still have valid H1B till Sept 2009. My existing employer has recieved the denial letter. He says that there is some problem with the designation and it the extension has been rejected. My I94 expired on Oct 2008. Can i transfer my visa to another employer at this point of time. i have a job and visa for 7 months. plz help.

vi75 and sahayam,

Once we appealed the denial, Applied for transfer in Premium with another employer (250+ Employees) but again LONG LIST of RFE (Company Records, Payroll Data, photos etc...), even though we provide Client Contract and SOW, These USCIS is intentionally sending RFE to scrutinize every company no matter how big is...I crossed my fingers.

FYI: Me must file Appeal, make sure the Status of denied extension changed. then apply for transfer in premium. I have no idea about my status but still trying to know whether 180 or 240 days rule applies to me.

Thanks
Ravi

[unitednations]

If you are past your I-94 card date and you file for a transfer; uscis will not approve the second petition with I-94 card; they will say that you are not in h-1b status and they cannot extend. They will still approve but without i-94 card.

you would have to go for visa stamping.

[arukala]

Originally Posted by unitednations

If you are past your I-94 card date and you file for a transfer; uscis will not approve the second petition with I-94 card; they will say that you are not in h-1b status and they cannot extend. They will still approve but without i-94 card.

you would have to go for visa stamping.

Unitednations,

What do you think if we provide Paystubs during that period I mean (Expired i-94 in Sep-08 but i have paystubs as of Jan-09 (Denied on 02/04/09))?

Tks
Ravi

[unitednations]

Originally Posted by arukala

Unitednations,

What do you think if we provide Paystubs during that period I mean (Expired i-94 in Sep-08 but i have paystubs as of Jan-09 (Denied on 02/04/09))?

Tks
Ravi

four years ago uscis came out with a memo.

Question was if an applicatoin was filed prior to the i-94 expiry date but person is workingon the receipt; what status are they on?

Answer; they are not in H-1b status but rather they are in a "period of authorized stay by the attorney general" and they can continue to work until decision is rendered (there is another part of the law that says once i-94 card has expired; you can only work to maximum of 240 days).

Within same memo; the question was can a person change employers if a person is working based on an extension but i-94 card has expired.

Answer was "yes" they can do it. However; uscis clarified it that for second h-1b to get approved with I-94 card then first h-1b extension had to get approved.

Now; back four years ago; people would do premium on h-1b transfer case and it would get approved before decision was made on first case. USCIS would usually give i-94 card with it. However; now they have changed the interpretation. They will approve second h-1b but without i-94 card if first one is still pending.

In RFE's from Vermont; they are asking show us first h-1b approval or request consular processing.

California just approves second one without I-94 card. They don't even bother giving rfe.

I've done enough of these that you can take it on good authority that this is how it works.

[desi3933]

Guidance on Interpretation of “Period of Stay Authorized by the Attorney General” in Determining “Unlawful Presence” under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (Act)

http://www.uscis.gov/files/pressrele...tay4023Pub.pdf

[arukala]

Originally Posted by desi3933

Guidance on Interpretation of “Period of Stay Authorized by the Attorney General” in Determining “Unlawful Presence” under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (Act)

http://www.uscis.gov/files/pressrele...tay4023Pub.pdf

Thanks for sharing information.

[Bolt]

Hi,
I was with company A until march 2008. i transfered my h1 to company B on march 24th 2008 (that was the receipt date). My I-94 was valid until august 18th 2008. This case was pending at vermont service center until march 10th 2009 (which is almost an year) with one RFE anf got denied on march 10th 2009.My employer haven't received the denail notice yet. Am sure that previous RFE was on company rather than personal. i got my labor approved thru PERM from this company. what are my options here ? what can i do next. can i apply for h1 transfer with another company ? If i appeal / go for MTR how much time will it take and mean while this MTR process goes on, will i be valid to stay in USA ?
Please respond, i would really appreciate your responses. please kindly do reply.

[arukala]

Bolt,

Ask your Company B to file an appeal as soon as possible, Find an employer and Transfer your H1, Lets USCIS determine whether they issue with new i-94 or Consular Processing. I have no idea about your stay, since your I-94 expired and Overstayed Morethan 180 Days. Please consult attorney or Ask Ron

Thanks
Ravi