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H1B Transfer Denial - please advice


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#1 MuruganH1B

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Posted 25 May 2012 - 04:04 AM

Dear MurthyForum,

Entered US to work for company A on H1B with visa & I-94 valid till sep 2012. later got a good offer from Company B and they initiated a H1B transfer cum extension. started work for Company B's client on receipt notice. RFE received and was responded. three days back the status shows, there has been a denial decision on the transfer case and yet to receive the reason.

question 1:
What is my curent status? (I-94 valid but currently not with company A and company A has not revoked). Am I out of status?
Searching the forum, I understand that if your I-94 is expired and CIS denies your transfer/extension petition, the individual is out of status immediately. Searching the forum, I also understand that if the individual goes back to company A when the I-94 is valid, he will not be out of status. Please corrrect me if my understanding is wrong. And now my question is, if we have a valid I-94, and transfer petition is denied, in how many days the person goes out of status (i.e. from denial of a transfer petition) if he is not going back to company A.

question 2:
Is valid I-94 an "in status"? or they both different? can anyone please explain?

question 3:
Based on the reasons in the denial decision Company B is telling either they will do a MTR or file a new petition. Not to take any chances, found Company C who is willing to file a H1B transfer for the same position. Is it ok for two companies (i.e. company B & C) filing petitions simultaneously for the same position? Is this possible?

question 4:
If the Company B receives denial notice and responds immediately by applying with a new petition or MTR, can the individual continue work with the Company B's client on the new receipt notice?

Experts , Attorney please respond. Your advice would be of great help to get me out of this.

Thank you.

#2 wiweq

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Posted 25 May 2012 - 10:59 AM

question 1:
What is my curent status? (I-94 valid but currently not with company A and company A has not revoked). Am I out of status?
Searching the forum, I understand that if your I-94 is expired and CIS denies your transfer/extension petition, the individual is out of status immediately. Searching the forum, I also understand that if the individual goes back to company A when the I-94 is valid, he will not be out of status. Please corrrect me if my understanding is wrong. And now my question is, if we have a valid I-94, and transfer petition is denied, in how many days the person goes out of status (i.e. from denial of a transfer petition) if he is not going back to company A.

=> If A hasn’t revoked your H1b, you can again establish employee - employer relationship by getting new offer letter, working for them and getting paid by them. There is no grace period on H1b; once your H1b terminated you have to leave US or file COS (while being in status).

question 2:
Is valid I-94 an "in status"? or they both different? can anyone please explain?

=> With unexpired I94 but with no H1b employer you would accumulated out of status days, which may award you 6 years or 10 years ban (depending on your out of status days). With expired I94 stay you will accumulate illegal stay in USA.

question 3:
Based on the reasons in the denial decision Company B is telling either they will do a MTR or file a new petition. Not to take any chances, found Company C who is willing to file a H1B transfer for the same position. Is it ok for two companies (i.e. company B & C) filing petitions simultaneously for the same position? Is this possible?

=> Because your H1b from B has resulted in denial, you are no longer eligible for H1b extension or COS. If its was in still in processing, C could have filled H1b for you.

question 4:
If the Company B receives denial notice and responds immediately by applying with a new petition or MTR, can the individual continue work with the Company B's client on the new receipt notice?

=> MTR is risky. Normally it fails, for the same reason of denial. MTR doesn't give you any status. If it failed, and because you didn't leave US during VD (voluntary departure) time, you may get 10 years ban to enter in USA.

As I always suggest, join new company only after new H1b is completely approved. H1b can be approved in 2-3 weeks if it’s done in PP. Beneficiary can also legally pay PP fees ($1225). This make life easier.

Best bet in your case: Leave US, ask C to file your H1b (when you are outside of USA), get H1b stamping and enter. If you already have stamping, you can just reenter using new I797. All the best!
More questions/ doubts. Let us know.

#3 MuruganH1B

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Posted 29 May 2012 - 05:19 PM

Dear Member wiweq:
Thank you for your reply and advice.

Received the notice and after looking at the document it looks like it is pure documentation nightmare.

Having worked on receipt notice and the payroll run for 2 months, With the petition denied, Am I still the employee of Company B?(Since I signed the offer letter).

Is my offer and employment with Company B valid/active? Since, I signed the offer letter, do I need to formally send a resignation.

Normally companies add terms and condition statements (i.e. non solicitation) in the offer letters for business reasons to protect their business opportunities. stuff like not joining directly the vendor, customer etc. Do such statements as part of the offer letter, are they valid since the petition is denied? am I having any contractual commitments with company B after the denial?

The reason I am asking this because, Can we link Company A to the vendor of the client for the project.

Thank you.

#4 MuruganH1B

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Posted 29 May 2012 - 08:46 PM

Hai members,

The payslips I received through Company B for the period I worked before denial, are they valid and eligible for a new petition through company C?

Thank you.

#5 wiweq

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Posted 30 May 2012 - 10:49 AM

"The payslips I received through Company B for the period I worked before denial, are they valid and eligible for a new petition through company C?"

=> Just paystubs are not enough for H1b approval. Because your H1b is denied and you are logged as out of status in USCIS system, your H1b extension/ approval, COS won't approve.
You are still employee of B, but not eligible to work in USA. Now you are accumulating out of status days from the date of departure from A.
Consider it as a lesson learned, NEVER JOIN NEW EMPLOYER UNTIL NEW H1B IS APPROVED. IF NEEDED PAY FOR PP($1225).

Best bet: As I said in my previous post, leave USA ASAP, and get another employer to file H1b for you (while living outside of USA).
Please share the reason of denial.


#6 MuruganH1B

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Posted 30 May 2012 - 07:00 PM

Hi wiweq:
Thanks for you reply.

=> Just paystubs are not enough for H1b approval. Because your H1b is denied and you are logged as out of status in USCIS system, your H1b extension/ approval, COS won't approve.

Based on the above inputs, if I am back to Company A and working for him, and Company A applies for my extension after couple of months, even then my H1B extension won't approve?


If I can get approval being with Company A, just to understand, how is that approach different from company C applying without going back to Company A?

Please advise.

By the way regarding the denial reason, it is an 8 page document, as I said in my previous post it is complete documentation nightmare. The documentation submitted by company B did not satisfy for many parameters and thus the denial decision.


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