I94 expired, H1b extention denied, New H1b question

[ml98]

I-140 approved, I94 expired, H1b extention denied, SOC: 15-1199, Vermont processing center, EC model.

H1b applied: 9/17/2019, RFE: 9/27/2019, I94 expired: 10/10/2019, RFE response: 11/12/2019 and H1b denied: 11/22/2019

My current client is offering FT and is willing to file a new H1b petition, but it will be through consular processing as per my understanding. I am leaving US next week. I am currently wrapping up stuff in US, selling my car, donating clothes and furniture etc. Its very heart breaking for me to leave like this.... 

Questions:

1. Can my client file for a new H1b while i am in the US, or they can only file a new H1b petition while i am in India ?
2. Can an employer B file for a new h1b for the same position ? would it be a duplicate application ?
3. How long can i stay, i know i have to leave ASAP, but would 15 days of "unlawful presence" justifiable ?

Please let me know you thoughts. Thanks a lot in advance. 

 

[User099]

Sorry to hear about your situation, hope everything will work out in your favor with the new petition.

Why was you petition rejected? Why did they go with 15-1199? What is your job title?

1.  They can file while you are here, but you can't use it to stay here.

2. They can file for the same position, its not a duplicate application. You might have to make some changes.

3. There is no rule on when you should leave. 15 days is a reasonable time.

 

 

[sudipp]

Hi, sorry to hear your situation.
What was the RFE for? What was your wage level? Did your SOC code got changed for this renewal?

thanks

[sudipp]

Yes your client can file for H1b, but you need to get it stamped to enter US

[itskarthiksid]

I am also almost in a similar situation. 

My i797 is expired 4 months ago. 

My i140 got approved 2 months ago (with a different employer)

Now, my new transfer petition is approved for consular processing (i94 denied) , but its approved only till feb2020 (my maxout time). = Because, i filed this petition after my i797 expiry. 

But, i also have another transfer petition with a different employer (same job), but it was filed before my i797 expiry. CAN I GO BACK AND START WORKING FOR SAME JOB, WITH MY OLD EMPLOYER and expect to get approval (without consular processing ?) ???????????

PLS HELP.

[pontevecchio]

1. They can file wherever you are.

2. Possible

3. Penalties after 180 days of unlawful presence onwards.

 

[ml98]

13 hours ago, User099 said:

Sorry to hear about your situation, hope everything will work out in your favor with the new petition.

Why was you petition rejected? Why did they go with 15-1199? What is your job title?

1.  They can file while you are here, but you can't use it to stay here.

2. They can file for the same position, its not a duplicate application. You might have to make some changes.

3. There is no rule on when you should leave. 15 days is a reasonable time.

 

 

I went with 15-1199 as my job title is Systems Engineer.

My petition was rejected stating that my client is a consulting company(from what the website looks like), that the client's product that i am working on is already a finished product and there is no availibility of work. In the RFE response, we have mentioned about the product, architecure, ongoing work and future milestones, press releases, detailed job description with o.net references etc.  He just didn't buy it and came to the above conclusions. I wish my attorney did a better job. and i wish they filed for my extension well before I-94 expiration.

[ml98]

7 hours ago, itskarthiksid said:

I am also almost in a similar situation. 

My i797 is expired 4 months ago. 

My i140 got approved 2 months ago (with a different employer)

Now, my new transfer petition is approved for consular processing (i94 denied) , but its approved only till feb2020 (my maxout time). = Because, i filed this petition after my i797 expiry. 

But, i also have another transfer petition with a different employer (same job), but it was filed before my i797 expiry. CAN I GO BACK AND START WORKING FOR SAME JOB, WITH MY OLD EMPLOYER and expect to get approval (without consular processing ?) ???????????

PLS HELP.

Sorry to hear that, i would say get all your questions lined up and consult an attorney. Forums can be helpful but again consulting an attorney on these matters is worth it in my opinion. 

[ml98]

Update: Client's attorney after reviewing my case, says that the he has to disclose the denial details in his new petition and there is no way around it. Moreover he says that this is a tough case and chances are slim. Most of my collegues got H1b transfer to ths FT position well without any issues. But in my case, due to the previous denial notice disclosure, the new petition will be affected.

But i don't have a choice and i am going with the FT offer and new petition. If there is an RFE i think, client's attorney might do a better job responding than my current employer's attorney. My employer stopped talking to me after denial, funny how that works.

[User099]

4 hours ago, ml98 said:

I went with 15-1199 as my job title is Systems Engineer.

My petition was rejected stating that my client is a consulting company(from what the website looks like), that the client's product that i am working on is already a finished product and there is no availibility of work. In the RFE response, we have mentioned about the product, architecure, ongoing work and future milestones, press releases, detailed job description with o.net references etc.  He just didn't buy it and came to the above conclusions. I wish my attorney did a better job. and i wish they filed for my extension well before I-94 expiration.

Filing for an extension and getting a decision while I-94 is valid is the best option now a days. Since your employer is not a talking to you that means they will not appeal the decision. 

Sometimes a fresh case and a new lawyer will be able to able to get you a favorable decision. All the best!

[User099]

11 hours ago, itskarthiksid said:

I am also almost in a similar situation. 

My i797 is expired 4 months ago. 

My i140 got approved 2 months ago (with a different employer)

Now, my new transfer petition is approved for consular processing (i94 denied) , but its approved only till feb2020 (my maxout time). = Because, i filed this petition after my i797 expiry. 

But, i also have another transfer petition with a different employer (same job), but it was filed before my i797 expiry. CAN I GO BACK AND START WORKING FOR SAME JOB, WITH MY OLD EMPLOYER and expect to get approval (without consular processing ?) ???????????

PLS HELP.

I am confused, can you be clean on who filed you I140 and who applied extension and which petition got approved for consular processing? Can you be more clear?

But since your I94 is expired it will be tough to get it extended by filing a new case. 

[ml98]

8 hours ago, User099 said:

Filing for an extension and getting a decision while I-94 is valid is the best option now a days. Since your employer is not a talking to you that means they will not appeal the decision. 

Sometimes a fresh case and a new lawyer will be able to able to get you a favorable decision. All the best!

My client's attorney says, he has to disclose the denial details in his new petition, so he thinks chances of approval are slim.

I guess among other things, i need to be prepared to provide better documentation with new attorney's help probably. 

[User099]

After reading through this I feel you will need an attorney who has experience with cases regarding product based companies. You need to clearly define that you will work for the company which built and sells the product and not at the company that is going to purchase/use the product.

1. A document which clearly define your role and responsibilities in detail. (Don't use too many acronyms)

2. You will need a letter that defines the product upgrade/maintenance project which will need your expertise. 

3. A Master service agreement between the end client and the product company which describes the warranty and support plan for the product will help your case.

This notice talks about not being able to provide enough evidence to support your case, which I feel can be used in your favor. Provide additional evidence in the new case and it should help you. Hope everything works out for you!

[ml98]

On 11/30/2019 at 3:53 PM, User099 said:

After reading through this I feel you will need an attorney who has experience with cases regarding product based companies. You need to clearly define that you will work for the company which built and sells the product and not at the company that is going to purchase/use the product.

1. A document which clearly define your role and responsibilities in detail. (Don't use too many acronyms)

2. You will need a letter that defines the product upgrade/maintenance project which will need your expertise. 

3. A Master service agreement between the end client and the product company which describes the warranty and support plan for the product will help your case.

This notice talks about not being able to provide enough evidence to support your case, which I feel can be used in your favor. Provide additional evidence in the new case and it should help you. Hope everything works out for you!

Thank you, after carefull review of my RFE response documentation, from an USCIS officer perspective, i realized that it wasn't up to the mark. I, with guidance of a discerning attorney, could have done a better job. You are right USCIS might give me a RFE, as a second chance to get the documentation right this time around. I have taken a good note of your feedback, its making sense now. 

[ml98]

On 12/1/2019 at 5:23 AM, User099 said:

After reading through this I feel you will need an attorney who has experience with cases regarding product based companies. You need to clearly define that you will work for the company which built and sells the product and not at the company that is going to purchase/use the product.

1. A document which clearly define your role and responsibilities in detail. (Don't use too many acronyms)

2. You will need a letter that defines the product upgrade/maintenance project which will need your expertise. 

3. A Master service agreement between the end client and the product company which describes the warranty and support plan for the product will help your case.

This notice talks about not being able to provide enough evidence to support your case, which I feel can be used in your favor. Provide additional evidence in the new case and it should help you. Hope everything works out for you!

2. You will need a letter that defines the product upgrade/maintenance project which will need your expertise. 

There is a legit upgrade and modernizaton project effort that is actively been going on, it is just that, the upgrade project is not in the public domain yet and morever there is no evidence on the internet or the company website, to prove that the upgrade project actually exists. However, i can provide ample documentation on the upgrade project and references to the need for my services, would that suffice as evidence. I would like to hear your thoughts on this.

3. A Master service agreement between the end client and the product company which describes the warranty and support plan for the product will help your case.

I totally agree. However. there are more than 30 counties that use our product, would it make sense to get at least one of the county, show the agreement with my client aka employer. Analogy here is, lets just say i work for Netfix, it wouldn't make sense to get a client letter from every subscriber,  moreover i work in the IT operations side 15-1199.02 , i dont ever have to report or deal with the clients. I would like to hear your take on this one as well.

Thanks for your help in advance.

[User099]

5 hours ago, ml98 said:

i can provide ample documentation on the upgrade project and references to the need for my services, would that suffice as evidence.

I think this should be enough. Upgrade plans can be called a trade secrets and might not be publicly available till the product reaches a critical stage.

Regarding the MSA, I was talking generally without knowing what kind of product or business your Client is into. Ofcourse you are right about Netflix. In the client letter or on their website if they can mention some of the counties using the tool will go a long way.

Generally if your job description doesn't fit into any of the detailed SOC codes then you go with 15-1199 which is Computer Occupations-All other and 15-1199.02 is a sub category under it. You have 15-1141, 15-1142 and 15-1143 which deal with similar IT Operations job profiles in detail. I am not expert in these, but might be something you can talk to the attorney.

[ml98]

Hi User099,

My new H1b petition has been approved without a RFE on Jan 13, today my visa has been issued without any problems. I followed your advice on project documentation, that helped in my new H1b FTE petition. my petition went to California service center. 

Lesson learned:

1. Do not take RFE lightly or even the initial H1b application for that matter. 
2. Don't completely rely on your employer and attorney.
3. Do your research, there is a ton of info online, and there are some generous folks online.
4. Don't hesitate to take a consultation call with immigration lawyers, if you have any doubts, i took one it costed 200 dollars but was worth it. 
5. Go through the RFE throughly.
6. See if your final response documentation is answering the questions raised by the RFE.
7. Dont just send lengthy generic documentation and assume the officer will do his digging. Show him the proofs, show him the crucial details you want him to see,
8. Remember RFE is a second chance to you granted by uscis to be more clear, respect that and be clear in your documentation. 
9. Do premium if possbile and apply for extension at least 5 months before I-94 expiry.
10. Be a step ahead of your employer and attorney.
11. You are no that important to them (employer and attorney), they will say sorry when your life is screwed.
12. Keep track of all the crucial dates (i-94, h1b expiry etc) and documents (797, 140 approvals notices etc)

Thank you very much to all the generous strangers online. I hope this helps at least one person somewhere. 

[User099]

Glad everything worked out for you! 🙂