H1 transfer denied, previous H1 expired, MTR in progress.

[H1india]

Hi,

 

Could you please look into my case below and suggest me a feasible solution

 

Arrived US on Aug 2011 thru CompanyA on H1B(valid till Sep 30th 2013)

 

CompanyB filed H1 transfer on May 30th 2013

Started working for CompanyB from June 2013

CompanyB upgraded H1 transfer process to premium on November 2013

Received RFE

Responded back to RFE

H1B transfer denied on Dec 30th 2013

Reason for denial: employer-employee relationship doesnot exist for the duration of the requested H1B validity period.

(Attorney had made a client address typo in some cover letter while responding to my RFE. He was working on multiple rfe's and made this mistake..)

 

Company B filed MTR on Jan 8th 2014 with new workorder with new dates from client

Company B is planning to file a new H1 after waiting for 2 more weeks for MTR result.

Client had accepted me working from India for few weeks until this is resolved. So, my company is suggesting for below steps

 

Move back to India and start working for client

File new H1 at end of FEB in premium

After getting approval go to stamping and come back

 

note: My H1 from previous employer expired on Sep 30th 2013

 

Could you please let me know how feasible is this sollution.

 

Many thanks,

Sri

 

 

 

[jairichi]

 

Hi,

 

Could you please look into my case below and suggest me a feasible solution

 

Arrived US on Aug 2011 thru CompanyA on H1B(valid till Sep 30th 2013)

 

CompanyB filed H1 transfer on May 30th 2013

Started working for CompanyB from June 2013

CompanyB upgraded H1 transfer process to premium on November 2013

Received RFE

Responded back to RFE

H1B transfer denied on Dec 30th 2013

Reason for denial: employer-employee relationship doesnot exist for the duration of the requested H1B validity period.

(Attorney had made a client address typo in some cover letter while responding to my RFE. He was working on multiple rfe's and made this mistake..)

 

Company B filed MTR on Jan 8th 2014 with new workorder with new dates from client

Company B is planning to file a new H1 after waiting for 2 more weeks for MTR result.

Client had accepted me working from India for few weeks until this is resolved. So, my company is suggesting for below steps

 

Move back to India and start working for client

File new H1 at end of FEB in premium

After getting approval go to stamping and come back

 

note: My H1 from previous employer expired on Sep 30th 2013

 

Could you please let me know how feasible is this sollution.

 

Many thanks,

Sri

 

Suggestion provided by employer is fine.

[rahul412]

Currently you are out of status. You need to move back to India ASAP, follow your employer's advice.

[permaudit]

Sorry to say this, but I was in a similar situation.

 

Since your H1 Transfer is denied, you are out of status and are considered to be accruing illegal stay in the US since Set 30th 2013(Even though you got the denial notice in Dec 30th 2013, USCIS would consider you as out of status from Sept 30th 2013 i.e the day your I-94 expired). You are not suppose to work right from the day you received the denial notice.

 

I don't mean to scare you. I was in a similar situation and contacted various attorney's including Murthy regarding the out of status timeframe. But my situation was denial of extension with the same employer. 

 

Even though an MTR is filed under Nunc-pro-Tunc, its completely based on the discretion of the adjudicating officer.

 

Your only option is to go out of the country as soon as possible and wait for the new petition to be filed and have the visa approved. It took close to 6 months for me to come back to the US. (Note, that the timeline is based on a case by case basis).

 

All the best!!

 

 

 

 

 

[fero45]

I was in a similar situation and moved out of US in Mar'2012.

 

My H1B term - Oct'2007 to Sep'2013, am planning to file for H1B again from India, will my application come under cap exempt ?

[H1india]

Thanks for your response..

Could you please explain why did it take 6 months for you to come back?

Thanks,

Sri

[permaudit]

Thanks for your response..

Could you please explain why did it take 6 months for you to come back?

Thanks,

Sri

As I said, the duration depends on a case by case basis. For me I had to go to India after my extension was denied as I was out of status. It took close to 2 months for me to get hold of another employer and have a new petition filed after which I went for Visa Stamping and was given 221g (Administrative Processing). It took close to 4 months to get my visa approved.

[H1india]

Actually, my new h1 is going to be filed again by the same employer(with whom my visa transfer got denied). Do you see any issue here?

Thanks

Sri

[H1india]

Suggestion provided by employer is fine.

Hi jairichi, 

 

Thanks for the response. I have one more question. Since I lived in US on out of status for some period (Sep 30th to Feb 15th), will I face any questions on that when I go to stamping on another H1. If yes what best answer could I give to them about this.

Could you please read my case from the above post again before answering.

 

Many thanks,

Sri

[jairichi]

Hi jairichi, 

 

Thanks for the response. I have one more question. Since I lived in US on out of status for some period (Sep 30th to Feb 15th), will I face any questions on that when I go to stamping on another H1. If yes what best answer could I give to them about this.

Could you please read my case from the above post again before answering.

 

Many thanks,

Sri

You might or you might not. But, always answer the truth. Nothing wrong in doing so.

[jairichi]

Actually, my new h1 is going to be filed again by the same employer(with whom my visa transfer got denied). Do you see any issue here?

Thanks

Sri

As long as your employer's attorney does not make the same typo mistake, addressed previous RFE and every other document is in order should not be a problem.

[H1india]

As long as your employer's attorney does not make the same typo mistake, addressed previous RFE and every other document is in order should not be a problem.

Hi Jairichi, Thanks for your response.. Just praying now. Will update you once everything is solved..

[jairichi]

Hi Jairichi, Thanks for your response.. Just praying now. Will update you once everything is solved..

Good luck.

[srinathchowdary]

My H1B extension filed on Oct 26th and after answering to RFE got denied on Feb 6th and my Wife's Delivery due date is on April 4th and Doctor strictly said should not travel  as it is very much risky and By April 26th 180 days I-94 expiry date would be completed and i would fall under 3 year ban. What are the Options left at this time. I am very much critical situation.

[jairichi]

My H1B extension filed on Oct 26th and after answering to RFE got denied on Feb 6th and my Wife's Delivery due date is on April 4th and Doctor strictly said should not travel  as it is very much risky and By April 26th 180 days I-94 expiry date would be completed and i would fall under 3 year ban. What are the Options left at this time. I am very much critical situation.

Being in such critical situation it is imperative that you contact an immigration attorney immediately rather than asking opinions in a forum.

[H1india]

Good luck.

Hi Jairich,

 

Hope you are doing good. I have some news. My original denied H1 was reopened and got approved. But unfortunately I moved out of the country three weeks before receiving this approval notice(I traveled from USA on 16th Feb and my MTR got processed and H1 approved on 6th March). Now I am planning to travel back to US.

My question is am I in back to normal stage? Can I mention no. of overstayed days in US as NO in DS160 form? or do I need to mention about it in DS160 form? 

Could you please tell me what kind of reasoning can I give during visa stamping?

 

Many Thanks,

Sri

[jairichi]

Hi Jairich,

 

Hope you are doing good. I have some news. My original denied H1 was reopened and got approved. But unfortunately I moved out of the country three weeks before receiving this approval notice(I traveled from USA on 16th Feb and my MTR got processed and H1 approved on 6th March). Now I am planning to travel back to US.

My question is am I in back to normal stage? Can I mention no. of overstayed days in US as NO in DS160 form? or do I need to mention about it in DS160 form? 

Could you please tell me what kind of reasoning can I give during visa stamping?

 

Many Thanks,

Sri

Good to know that your MTR was successful. You need to provide the number of days you overstayed in DS160 as US consulate will have a record of this. The only option you have is to tell the truth. It is not bad to do so. Good luck with your visa stamping.

[H1india]

Hi Jairich,

Hope you are doing good. I have attended visa interview yesterday. They have verified my docs(client letter, contract letter, i129, labor and letter to USCIS). She mentioned that additional admin processing is required in my case. She gave me a 221g white slip and no more docs required. She also gave my passport back to me and said they will contact me once the processing is completed.

Could you please let me know what are they going to do in this process and how long it takes..

Thanks

Sri

[jairichi]

Hi Jairich,

Hope you are doing good. I have attended visa interview yesterday. They have verified my docs(client letter, contract letter, i129, labor and letter to USCIS). She mentioned that additional admin processing is required in my case. She gave me a 221g white slip and no more docs required. She also gave my passport back to me and said they will contact me once the processing is completed.

Could you please let me know what are they going to do in this process and how long it takes..

Thanks

Sri

Nothing specific can be said about your admin processing. You have to wait patiently and keep checking the website for any update. Hopefully things will get resolved within a month time. Keep yourself occupied with activities.

[H1india]

Nothing specific can be said about your admin processing. You have to wait patiently and keep checking the website for any update. Hopefully things will get resolved within a month time. Keep yourself occupied with activities.

Hi Jairichi, Thanks for the response.