H1B Transfer Denied, Planning to apply Appeal. Can I work while Appeal in progress?

[jairichi]

I am back again :)

 

As you know, I am working currently in Minnesota using L2 EAD after my H1B Transfer is denied (long story short). My Employer has applied for PWD certificate and got it approved. He is filling Labor for me this week. 

 

Questions -

 

1. Can I relocate to different state (for different client) with the same employer, while the Labor in progress.? What are the complications?

2. Once the Labor is approved, do I have to have H1B approved before filing I-140. Or Is it okay for me to file I-140 when I am working using my L2 EAD?

3. In case if I am able to file I-140 when i am in L2 EAD, will I be able to get 3 years extention if I once again file H1B and get it approved? (basically gauging move from L2 EAD to H1B is better before or after I-140 approved). 

 

Kindly help me as you always do.

I used to be a resident of Minnesota earlier :)

 

1. In my opinion no problem as GC is for future employment. Talk to an attorney to be 100% sure.

2. Yes, you can stay on L2 EAD. As GC is for future employment your current L2 EAD status does not matter.

3. Yes, if you were cap counted once and have few days to recature you can get 3 year extensions based on approved I-140.

[mohan.july]

UPDATE:

My H1B is approved yesterday under cab exempt (this is one was denied exactly one year back). Now I am with different employer and it's been approved for 12 months exactly. This is the time left in H1B out of its 6 years.

Question: am I eligible for applying for new H1B in 2016 quota in the coming April 2015 with the Same Employer. Because I feel that this 12 months may not be enough for getting I-140 approved.

Please note that, excluding vacations, I am in USA since October 2010. Before that I was in India for 2 yrs.xs

[jairichi]

UPDATE:

My H1B is approved yesterday under cab exempt (this is one was denied exactly one year back). Now I am with different employer and it's been approved for 12 months exactly. This is the time left in H1B out of its 6 years.

Question: am I eligible for applying for new H1B in 2016 quota in the coming April 2015 with the Same Employer. Because I feel that this 12 months may not be enough for getting I-140 approved.

Please note that, excluding vacations, I am in USA since October 2010. Before that I was in India for 2 yrs.xs

Only if you have stayed outside US for 1 year at the time of filing you are eligible for a cap subject H1B petition.

[mohan.july]

But why, I stayed outside for 1.5 yrs and came back in October 2010, which means continuously I am staying here for about 4 yrs and 3 months so far... So I am edible for the next H1B right?

Kindly provide me little more details...

[jairichi]

But why, I stayed outside for 1.5 yrs and came back in October 2010, which means continuously I am staying here for about 4 yrs and 3 months so far... So I am edible for the next H1B right?

Kindly provide me little more details...

Only if you stay outside US for 1 year and a cap subject H1B petition is filed you are eligible for fresh 6 years. If your entry in Oct 2010 was based on a cap subject H1B petition then you have used 3 years and 3 or 4 months on H1B and you are eligible for the rest. If you entered in Oct 2010 based on a cap exempt H1B petition then previous stay on H1B or L1 (even if you had a gap of 1 year or more) has to be counted towards your 6 years limit on H1B.

[mohan.july]

Sorry, actually I re-entered US in Oct 2010 in L1B.

 

Overall:

2007 May - 2008 Dec ==> H1B

2009 Jan - 2010 Sep ==> India Break (1 yr 9 months)

2010 Oct - 2014 Jan ==> L1B

2014 Feb - 2015 Jan ==> L2 EAD

2015 Jan - Current ==> H1B (this is my old H1B and claimed the last left over amount under Cab Exempt and got it approved for 12 more months)

 

Do you think I am not eligible for new H1B in the 2016 Quota? Kindly advice.

[jairichi]

Sorry, actually I re-entered US in Oct 2010 in L1B.

 

Overall:

2007 May - 2008 Dec ==> H1B

2009 Jan - 2010 Sep ==> India Break (1 yr 9 months)

2010 Oct - 2014 Jan ==> L1B

2014 Feb - 2015 Jan ==> L2 EAD

2015 Jan - Current ==> H1B (this is my old H1B and claimed the last left over amount under Cab Exempt and got it approved for 12 more months)

 

Do you think I am not eligible for new H1B in the 2016 Quota? Kindly advice.

Your stay from May 2007 till now excluding the time on L2 status is counted to your 6 years on H1B. Since you moved to H1B status in Jan 2015 based on a cap exempt H1B petition you will eligible for fresh 6 years only if you stay outside US after a year. 

[mohan.july]

Thank you

[mohan.july]

In case if I had not moved back to H1B in Jan 2015, would i had chance to apply for new H1B under CAB in 2016 Quota.

[jairichi]

In case if I had not moved back to H1B in Jan 2015, would i had chance to apply for new H1B under CAB in 2016 Quota.

No. You need to be outside US physically for 1 year to file a cap subject H1B petition to be eligible to get 6 years. Any stay in US (in your case L2) does not help you.

[mohan.july]

Recap and Current situation:

 

History: Moved from L2 (and had EAD) to my old H1B in January 2015 (you might remember this was one was denied in jan 2014 while transferring to a new employer).

 

Current Situation: Currently in H1B and in sixth year ends by January 2016. Labor is filled on March 20th, 2015. My wife has L1A for next years.

 

Questions:

1. Do you think it's good idea for me to go back to L2 (and EAD) till i-140 is approved, which i am expecting around Nov/Dec 2015, and my current H1B expires in Jan 2016.

2. Can i apply for L2 and EAD at the same time while being in US itself. (plz note this is the second time i will be applying for L2).

 

Kindly help 

[jairichi]

Recap and Current situation:

 

History: Moved from L2 (and had EAD) to my old H1B in January 2015 (you might remember this was one was denied in jan 2014 while transferring to a new employer).

 

Current Situation: Currently in H1B and in sixth year ends by January 2016. Labor is filled on March 20th, 2015. My wife has L1A for next years.

 

Questions:

1. Do you think it's good idea for me to go back to L2 (and EAD) till i-140 is approved, which i am expecting around Nov/Dec 2015, and my current H1B expires in Jan 2016.

2. Can i apply for L2 and EAD at the same time while being in US itself. (plz note this is the second time i will be applying for L2).

 

Kindly help 

Moving to L2 will be a good idea. This gives you time to get PERM and I-140 approved. Once approved you can move to H1B and get 3 year extensions based on approved I-140. Yes, you can apply for COS to L2 and EAD simultaneously. Please do talk to a good attorney as they know specifics of your case and will give you best suggestion.

[mohan.july]

Thank you very much.

[mohan.july]

as you know, i am currently in H1B petition (expiring Jan 15, 2016) but not stamped yet. i need to go to canada for 1 week business trip, and not going for stamping.

 

Is that okay and would there be any problem while entering back to US. Please advice.

[jairichi]

as you know, i am currently in H1B petition (expiring Jan 15, 2016) but not stamped yet. i need to go to canada for 1 week business trip, and not going for stamping.

 

Is that okay and would there be any problem while entering back to US. Please advice.

Should not be an issue if you are planning to use AVR facility.

[mohan.july]

Thanks a lot.

 

One question:

 

In 6th year of H1B and it's expiring by Jan 15th 2016. Current employer has filled for I-140 today.

 

Once it's approved, Can another employer file for H1B and get 3 years approved? provided if all the necessary supporting documents are available.

 

Kindly clarify, as i am thinking whether i can take Full time position or not.

[jairichi]

Thanks a lot.

 

One question:

 

In 6th year of H1B and it's expiring by Jan 15th 2016. Current employer has filled for I-140 today.

 

Once it's approved, Can another employer file for H1B and get 3 years approved? provided if all the necessary supporting documents are available.

 

Kindly clarify, as i am thinking whether i can take Full time position or not.

Yes, for sure as long as I-140 is active at the time of H1B adjudication.

[mohan.july]

Thanks much.

 

1. So it's not required that i need to first get H1B extension done with my current employer who has approved I-140 approved, before moving on to next employer. Am i right?

 

2. And in your previous to previous reply regarding Canada Business trip question, you mentioned like "Should not be an issue if you are planning to use AVR facility." How do i use the AVR facility? do i need to do anything. i thought at the port of entry, they will apply this rule automatically. 

[mohan.july]

Hi Jairichi

 

I had Terrible experience in Toronto Port of Entry, after completing 5 days Business Trip in Canada. AVR automatic revalidation program did not work very well.

 

1. Officer#1 at the POE booth sent me to the secondary validation room which i showed him L2 expired Visa and H1B approved petition copy.

2. There, two officers officer#2 and officer#3, jointly asked me questions, and i told them that i am seeking entry as per AVR. And i gave them the AVR pdf document which i downloaded from the USCIS website.

3. They told me that since i changed the status from L2 Visa to H1B which is not stamped in my passport yet, they were wondering which visa to revalidate whether it should be L2 or H1, and whether this is a legal entry or not.

4. They both want to take seconday opinion and went to another room.

5. Then came back after 15 mins, and discussed with me for 10 more mins and then allowed me the entry.

6. In my passport, he put the stamp and mentioned as H1B and expiry date to be same as petition end date.

 

Questions:

1. He put the seal with H1B and allowed me in, when i don't have H1B visa stamped yet. Is this correct? will it harm me anytime in the future?

2. New I-94 is generated online after this visit. This I-94 number is different from the I-94 number on the H1B petition copy. Can this happen? I am worried about this now.

 

Kindly help on this. Thanks! (overall i felt i should have avoided this trip as my i-140 is in progress now, which was filled last week)

[jairichi]

Hi Jairichi

 

I had Terrible experience in Toronto Port of Entry, after completing 5 days Business Trip in Canada. AVR automatic revalidation program did not work very well.

 

1. Officer#1 at the POE booth sent me to the secondary validation room which i showed him L2 expired Visa and H1B approved petition copy.

2. There, two officers officer#2 and officer#3, jointly asked me questions, and i told them that i am seeking entry as per AVR. And i gave them the AVR pdf document which i downloaded from the USCIS website.

3. They told me that since i changed the status from L2 Visa to H1B which is not stamped in my passport yet, they were wondering which visa to revalidate whether it should be L2 or H1, and whether this is a legal entry or not.

4. They both want to take seconday opinion and went to another room.

5. Then came back after 15 mins, and discussed with me for 10 more mins and then allowed me the entry.

6. In my passport, he put the stamp and mentioned as H1B and expiry date to be same as petition end date.

 

Questions:

1. He put the seal with H1B and allowed me in, when i don't have H1B visa stamped yet. Is this correct? will it harm me anytime in the future?

2. New I-94 is generated online after this visit. This I-94 number is different from the I-94 number on the H1B petition copy. Can this happen? I am worried about this now.

 

Kindly help on this. Thanks! (overall i felt i should have avoided this trip as my i-140 is in progress now, which was filled last week)

If you were staying in US on H1B status and tried to use AVR facility using valid I797 and I94 you are fine.

If you were staying in US on L2 and tried to use AVR facility using H1B I797 then that entry is not valid.

[jairichi]

Should not be an issue if you are planning to use AVR facility.

I suggested AVR facility because you were in US on H1B status with a valid I94 before your Canada travel. So you will legally be allowed to enter US with a valid H1B I797 and I94 and use AVR facility for any travel within 30 days even though your H1B visa is expired or never had a H1B stamp.

[mohan.july]

Ok Jairichi. I totally agree with you. The confusion was due to the fact that previously i entered USA thru L2 Visa and later moved to H1B and it's not stamped. Basically, i was having expired  L2 Visa and approved H1B petition, and seeking entry using AVR.

 

Since there was a change in Visa type, the officer got confused which Visa type that he had to re-validate. 

 

Could you please also provide your thoughts on the below questions,

 

1. He put the seal and mentioned H1B in it, Is this correct when i dont have H1B visa? will it harm me anytime in the future?

2. New I-94 is generated online after this visit. This I-94 number is different from the one on the H1B petition copy. Can this happen? 

[jairichi]

 

Ok Jairichi. I totally agree with you. The confusion was due to the fact that previously i entered USA thru L2 Visa and later moved to H1B and it's not stamped. Basically, i was having expired  L2 Visa and approved H1B petition, and seeking entry using AVR.

 

Since there was a change in Visa type, the officer got confused which Visa type that he had to re-validate. 

 

Could you please also provide your thoughts on the below questions,

 

1. He put the seal and mentioned H1B in it, Is this correct when i dont have H1B visa? will it harm me anytime in the future?

2. New I-94 is generated online after this visit. This I-94 number is different from the one on the H1B petition copy. Can this happen? 

 

http://www.cbp.gov/sites/default/files/documents/auto_reva_3.pdf

 

From this memo it is understood that a change in nonimmigrant status within US should not stop you from using AVR facility. Do you have an expired H1B visa in your passport? If yes, then you are eligible to use AVR facility.

Looks like immigration officer admitted you on H1B and since a new I94 is generated he did not use AVR for you.

My suggestion would be to talk to an attorney to be sure that your entry on H1B is valid. 

[mohan.july]

Yes initially i had H1B, then L1B, then L2 and then this H1B approved petition. The previous admission before getting this approved H1B petition was thru L2 Visa.

 

So, i think they have still used AVR, by referring back to my history and used H1B visa which was expired in 2008, and issued admission on H1B now. Not sure though.

 

Now my only concern is, The new I-94 number from this trip, is different from the one on the H1B petition copy.

I checked with my company attorney and they said, it's okay.

[jairichi]

Yes initially i had H1B, then L1B, then L2 and then this H1B approved petition. The previous admission before getting this approved H1B petition was thru L2 Visa.

So, i think they have still used AVR, by referring back to my history and used H1B visa which was expired in 2008, and issued admission on H1B now. Not sure though.

Now my only concern is, The new I-94 number from this trip, is different from the one on the H1B petition copy.

I checked with my company attorney and they said, it's okay.

Yes, that was my worry too as you got a new I94. On using AVR you do not get a new one. Good that you talked to your attorney. To be doubly sure you can talk with an attorney from Murthy law firm.