H1 Denied - Company planning to file a Lawsuit

[ravig12345]

Hi All,

I moved from Company A to Company B in August 2017 with WAC number. I have valid I797 from Company A till 2020. In August 2017 company B filed my H1 transfer and it went to RFE a month back and got denial after RFE submission with reason "Speciality Occupation"

My company B is planning for a lawsuit. Here are my questions.

1. As  i94 is valid till 2020 from company A, will i still come under out of status?

2. Am i legally eligible to work once lawsuit is filed?

3. If law suit is not approved will i accumulate unlawful work days (if i am eligible to work)

4. My wife is on H4 EAD. Can she work once lawsuit is filed.

 

[Summer_Holidays]

3 hours ago, ravig12345 said:

Hi All,

I moved from Company A to Company B in August 2017 with WAC number. I have valid I797 from Company A till 2020. In August 2017 company B filed my H1 transfer and it went to RFE a month back and got denial after RFE submission with reason "Speciality Occupation"

My company B is planning for a lawsuit. Here are my questions.

1. As  i94 is valid till 2020 from company A, will i still come under out of status?

2. Am i legally eligible to work once lawsuit is filed?

3. If law suit is not approved will i accumulate unlawful work days (if i am eligible to work)

4. My wife is on H4 EAD. Can she work once lawsuit is filed.

 

Yes -2,4

No-1,3

 

[adshah84]

5 hours ago, ravig12345 said:

Hi All,

I moved from Company A to Company B in August 2017 with WAC number. I have valid I797 from Company A till 2020. In August 2017 company B filed my H1 transfer and it went to RFE a month back and got denial after RFE submission with reason "Speciality Occupation"

My company B is planning for a lawsuit. Here are my questions.

1. As  i94 is valid till 2020 from company A, will i still come under out of status?

2. Am i legally eligible to work once lawsuit is filed?

3. If law suit is not approved will i accumulate unlawful work days (if i am eligible to work)

4. My wife is on H4 EAD. Can she work once lawsuit is filed.

 

You and your wife both can not work. 

You are out of status but fall in to 60 days grace period. So you are good for 60 days but can not work. 

[JoeF]

The lawsuit won't give you any rights to work. You are not in valid H1 anymore

Also, since the H1 is denied, your wife has to stop working immediately.

You can not stay in the US while the lawsuit is going on.

[Summer_Holidays]

8 hours ago, JoeF said:

The lawsuit won't give you any rights to work. You are not in valid H1 anymore

Also, since the H1 is denied, your wife has to stop working immediately.

You can not stay in the US while the lawsuit is going on.

Underlying petition is still valid meaning his existing H1 with Employer A is still valid and he can work 

[Summer_Holidays]

12 hours ago, adshah84 said:

You and your wife both can not work. 

You are out of status but fall in to 60 days grace period. So you are good for 60 days but can not work. 

Is this a rule in your country? Don’t post anything with half knowledge please this is a request.

Underlying petition is still valid meaning his existing H1 with Employer A is still valid and he can work.

[JoeF]

1 hour ago, Summer_Holidays said:

Is this a rule in your country? Don’t post anything with half knowledge please this is a request.

Underlying petition is still valid meaning his existing H1 with Employer A is still valid and he can work.

Huh?

The OP no longer works for his old employer.

The old employer was required by law to inform USCIS about that, which resulted in the H1 being revoked. That is mandatory. Otherwise, the old employer would have to continue to pay him, which no sane employer would want to do.

https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation."

Ergo, my statement is correct.

Next time, please educate yourself about the H1 rules. Thank you.

To reiterate: The OP is out of status.

[JoeF]

2 hours ago, Summer_Holidays said:

Underlying petition is still valid meaning his existing H1 with Employer A is still valid and he can work 

The OP did not say that. The OP only said that his I-94 is valid.

The OP left employer A in August 2017, and employer A was required by law to inform USCIS that the OP no longer works there, which resulted in USCIS revoking the H1. This is mandatory.

Ergo, the OP can nor just go back to employer A. If employer A wants to hire him back, they would have to file a new H1 petition, which would only be approved with consular notification, because the 60 day grace period from the day the OP quit employer A is over.

So, the statements that the OP is out of status are correct.

[Summer_Holidays]

18 hours ago, JoeF said:

The OP did not say that. The OP only said that his I-94 is valid.

The OP left employer A in August 2017, and employer A was required by law to inform USCIS that the OP no longer works there, which resulted in USCIS revoking the H1. This is mandatory.

Ergo, the OP can nor just go back to employer A. If employer A wants to hire him back, they would have to file a new H1 petition, which would only be approved with consular notification, because the 60 day grace period from the day the OP quit employer A is over.

So, the statements that the OP is out of status are correct.

Really I thought you knew how to read buddy - I have valid I797 from Company A till 2020...!!!

 

Nah, you are just thinking too much, relax and he is not out is status.

[JoeF]

37 minutes ago, Summer_Holidays said:

Really I thought you knew how to read buddy - I have valid I797 from Company A till 2020...!!!

 

Nah, you are just thinking too much, relax and he is not out is status.

And? That doesn't matter.

He left company A, so his H1 from company A is no longer valid. Company A had to inform USCIS, that means his H1 got revoked. It is *that* simple.

He had a 60-day grace period, which is over, so he is now out of status.

Please learn the H1 rules.

[Summer_Holidays]

3 hours ago, JoeF said:

And? That doesn't matter.

He left company A, so his H1 from company A is no longer valid. Company A had to inform USCIS, that means his H1 got revoked. It is *that* simple.

He had a 60-day grace period, which is over, so he is now out of status.

Please learn the H1 rules.

None of Desi consultancies will inform USCIS about it..! So chill and let the Thread Starter resolve his issue.

[JoeF]

37 minutes ago, Summer_Holidays said:

None of Desi consultancies will inform USCIS about it..! So chill and let the Thread Starter resolve his issue.

They are required to do so by law. If they don't, they would have to pay the person for all the time, even if he didn't work there anymore.

As I quoted before:

https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation."

And the OP didn't say that his old employer was a Desi consultancy.

The OP is out of status, even if the company didn't inform USCIS, due to him quitting more than 60 days ago. It really is that simple.

At least you seem to have learned about the H1 rules... Maybe next time you aren't as quick to insult people... A little knowledge goes a long way...

[Rahul_admin]

I had same denial as yours which is speciality occupation. If your i94 is not expired, ask your employer to file leave of absence and non-potent argument. There are chances of acceptance, if you already have a job at the same end client, once it is approved you can get back to status.

 

If your i94 is expired, you have to leave country asap, the longer you stay, the harder are the chances to come back. Change of job with a new employer with new h1 approval, stamping and clearing the immigration is involved to come back.

[SambaShiva]

My 2 cents.. You should file for a new H1B in premium processing with consular option. (if approved, you have to go back to India and get a new visa stamping)

Since you have a valid I-94, but your I-797 is revoked..you can stay for few weeks while your new petition is being processed.