Is There a Doctor in the House?

[Attorney_22]

This week, Murthy Law Firm attorneys will answer questions regarding nonimmigrant and immigrant petitions for doctors.

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[Bala16]

Thanks to Murthy forum for taking questions from physicians. 

I am an IMG initially trained under J1 exchange program(Jul 2010-Jun 2014) followed by Conrad 30 J1 waiver job for three years(Jul 2014-Jun 2017). Currently I have a H1B transfer petition(change of employer) pending with USCIS since May 30 2017(filling date). RFE was requested by USCIS in Sep 2017 and required documents submitted by my employer on Dec 1st 2017. As of today my petition is still under processing. My questions are

1. Current petition was filed as H1B transfer before the expiry of my J1 waiver H1B Visa with my previous employer. In this situation will the '240 day rule apply'? I couldn't find this information in USCIS website for H1B transfer petition. USCIS clearly explains that employee with pending H1B extension petition with same employer cannot work after 240 days. Does the same rule apply to a H1B transfer petition with a new employer. Please explain. 

2. If the 240 day rule is applicable to my situation, what are my options at the end of 240 days. 

a) stop working and wait for the petition to be approved. Or file a H4 EAD based on my spouse I140. 

b) is there an option to convert the pending application to premium processing now to avoid further delays (premium processing was temporarily closed in May 2017 as you remember)

3. My employer(physician) filled the petition himself with out going through an attorney. Now he is considering contacting USCIS via e-request to check on delay status. Is it a good idea to do it now.  Was it a wrong move by my employer to apply without an attorney which might be causing the delay.

Hope you could find time to answer my questions. Thanks again. 

[Attorney_11]

1. Generally, employment while a change of employer petition is pending is governed by INA 214(n). INA 214(n) provides for employment authorization to continue until the new petition is adjudicated. So there is no 240 day limit in this situation.

2. See above.

3. An inquiry could be submitted. Or the petition could be "upgraded" to premium processing. Premium processing resumed in stages over summer of 2017 and is now fully available again since the fall of 2017.

Having said that, a consultation with a credible and competent immigration attorney in your matter before taking any steps would be valuable, as there are some facts in the post which raise some questions about whether there would be a need to show extenuating circumstances for this change of employer to be approved.