Stay after H1 trasnfer denail

[Prati S]

Hi,

Can I start working for new employer after H1b denial on receipt? Here is the history

In September 2017, employer A's H1b got approved and but another employer B  apply for H1b petition as a change of employer before the original petition took effective on October 2017. I only worked for employer A on OPT and never on H1b. After that I received RFE on employer's B petition sometime in Feb 2018 but it was nothing related to my previous employer. RFE was to prove specialty occupation to which my employer B responded some time in April 2018 and my H1b got My 31 2018 as denied. Now on July 5th I have received another offer from employer C and he is asking me to join on receipt notice.

Can I join employer C on receipt, if not, do I have leaver the country? Also note that my employer B whos petition got denied has filed an appeal as well. My current i94 on original H1b approval is until Aug 2020 but for some reason when I pull up my i94 online it says Admission until d/s which was the same when I was a student. So can I stay in US looking for jobs?

Any help/suggestions are greatly apprieciated.

Thanks,

Prati

[JoeF]

You have not been counted for the quota because you never worked for the original employer on the H1.

That means you can not work on receipt, and a new employer would have to file an H1 in next year's quota.

You have to leave the country.

 

[mehopeful]

When did  your OPT expire? Are you currently in valid status? You can join based on receipt only if you are currently in H1B status which you are not. Moreover, A's petition may not be used to claim cap-exemption since you have never worked for them in H1B status.

[Provence]

The chances of employer B's appeal succeeding are slim to none since the RFE is related to specialty occupation; more often than not, appeals are ploys to buy time, and rarely succeed unless the denial was due to USCIS error. It looks like your H1b attempts were not successful. And as posted above, you have to leave the country. 

And no, there is no visa/status for looking for jobs. 

[Prati S]

On 7/13/2018 at 5:27 AM, JoeF said:

You have not been counted for the quota because you never worked for the original employer on the H1.

That means you can not work on receipt, and a new employer would have to file an H1 in next year's quota.

You have to leave the country.

 

In that case, why my petition with employer B has not been challenged for cap related queries. It was challenged for specialty occupation.

[Prati S]

On 7/13/2018 at 6:39 AM, mehopeful said:

When did  your OPT expire? Are you currently in valid status? You can join based on receipt only if you are currently in H1B status which you are not. Moreover, A's petition may not be used to claim cap-exemption since you have never worked for them in H1B status.

My OPT was valid until June 2018 but since the change of status happened on oct 2017, I believe it expired then. Here is the response from employer C's lawyer "A person with a current H1B I-94 may begin employment upon USCIS receipt of an employer's H1B change of employer petition" Please note that employer B's petition was never challenged for cap exempt related queries nor did the USCIS ask any payslips from employer A. USCIS only challenged to prove specialty occupation.

[Prati S]

On 7/13/2018 at 6:55 AM, Provence said:

The chances of employer B's appeal succeeding are slim to none since the RFE is related to specialty occupation; more often than not, appeals are ploys to buy time, and rarely succeed unless the denial was due to USCIS error. It looks like your H1b attempts were not successful. And as posted above, you have to leave the country. 

And no, there is no visa/status for looking for jobs. 

Agree but H1b attempt was unsuccessful by employer B not because I never worked for employer A instead employer B was asked to prove specialty occupation which was mainly asking why bachelor's degree is required for this. My employer B sent a 27 page report after taking expert opinion from University professor.

[Prati S]

On 7/13/2018 at 5:27 AM, JoeF said:

You have not been counted for the quota because you never worked for the original employer on the H1.

That means you can not work on receipt, and a new employer would have to file an H1 in next year's quota.

You have to leave the country.

 

Many thanks

[Prati S]

On 7/13/2018 at 5:27 AM, JoeF said:

You have not been counted for the quota because you never worked for the original employer on the H1.

That means you can not work on receipt, and a new employer would have to file an H1 in next year's quota.

You have to leave the country.

 

Many thanks

[Prati S]

On 7/13/2018 at 6:55 AM, Provence said:

The chances of employer B's appeal succeeding are slim to none since the RFE is related to specialty occupation; more often than not, appeals are ploys to buy time, and rarely succeed unless the denial was due to USCIS error. It looks like your H1b attempts were not successful. And as posted above, you have to leave the country. 

And no, there is no visa/status for looking for jobs. 

Many thanks

[JoeF]

8 hours ago, Prati S said:

In that case, why my petition with employer B has not been challenged for cap related queries. It was challenged for specialty occupation.

It may well be once the first RFE is answered. Nobody knows the mystery of USCIS...

But it eventually will get noticed, and then the sh*t hits the fan, and everybody claims to be surprised.

[mehopeful]

Even if there is no cap-exemption problem, you are clearly not maintaining H1B status when C filed their petition. So it is highly likely that C's petition will get approved without I-94. If that happens you will have to leave the US and return with H1B Visa. Also, with recent memo about issuing NTA's I would recommend seeking expert legal advice of your own (different from C's lawyer).

[Prati S]

Once my employer files in regular processing. Is there any chance later to do premium processing at all?