Maintaining Status While H-1B Petition is Pending

[Attorney_25]

This week, we will be discussing issues related to maintaining your status after a petition for you has been sent to USCIS, including working/not working/leaving the U.S./attending school etc. Post your specific situation and see how the rules apply.

 

Please post your relevant questions here.

 

 

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RULES FOR TOPIC OF THE WEEK THREADS:

1. Attorney’s postings contain general information only and are not a substitute for case-specific legal advice.
2. The attorney will answer only those questions that relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate section of the forum.
3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.
4. Please do not include information that would identify any specific company, university, or individual (including yourself).

 

[anjali]

 

Hi, I am anjali.

 

My question is related to the lottery system that the USCIS system works on.

If suppose applicant A applies 3 non-duplicate applications (applications through 3 different employers) and suppose in the computerized lottery, all the 3 applications are picked...

- Will they 3 be processed and replies are sent to the applicant after processing?

or

- Will the applicant be asked to withdraw 2 of these 3 applications and then later they will go with only one application processing? In which case there will be a chance for 2 other persons(applicant B and C) applications to be processed even if they are not selected in lottery the first time. (USCIS might keep applications on hold and later fill those 2 places).

 

Please let me know as many of us have different approaches on this and many confusions are going around.

[Manish.I]

Hello,

 

    My OPT expires on July 8th and my visa expires on July 16th. If my H1B is not picked/denied, can I apply for Fall semester in June and transfer my SEVIS and start attending classes in August? Is this an option? Please let me know. 

 

 Also, can we transfer our SEVIS to a different school if there is a RFE? Any response will be highly appreciated. Thank you.

[Attorney_25]

Anjali, USCIS does not limit processing to only 1 petition filed for the same beneficiary if more than 1 petition is filed, each by a different employer.

 

Manish, there is a 60-day grace period following your OPT expiration, in which you are considered to be continuing in F-1 status (although you cannot work during that time). During those 60 days you should quickly start the process of transferring to a new program if your H-1B is not picked. Your new program should start no more than 5 months from the end of your current F-1 period.

[Manish.I]

Thank you for the prompt reply.

-In case of a RFE, can I still transfer my SEVIS to a different school while the RFE is being answered?

-Since my visa is expiring on July 16th, I need to transfer my SEVIS before that since I need a valid visa to do that, correct? Again, any response will be highly appreciated. 

Thank you.

[anjali]

So, all the 3 applications that are picked in lottery will be processed ? They do not ask the applicant A to withdraw 2 of his applications?

[Attorney_25]

Manish, neither receiving an RFE on the H-1B or having the F-1 visa expire affects F-1 status. It will continue as described above, for the duration of the OPT plus 60 days and one can transfer F-1 programs as described above. If the H-1B is approved with change of status, then status will automatically change to H-1B and, unless the H-1B is withdrawn before October 1, at that point you will need a change of status back to F-1 if you want to be in F-1 status.

 

Anjali, normally three petitions filed by three different employers can all be processed. The only possible exception I've seen is where they are for the same end client assignment, and even then it's not clear that USCIS could properly refuse to process the petitions.

[Manish.I]

Thank you!

[Akshay098]

Hello,

 

I applied for H1 and my OPT is ending on July 12th 2014.

 

1. If my H1 gets picked in lottery and then denied  ---> Can i transfer my Sevis and join a new university to maintain my status with in 60 days from denial of H1 or OPT end date ?????

 

2. Will universites issue i20 and transfer Sevis during grace period ???

 

3. Since my OPT is expiring on July 12th , Fall classes wont start until August 23rd even if i get I20 by July end. Is it ok to wait until i join for fall semester ???

 

4. Will not answering the RFE correctly or not providing the required proof result in denial of grace period ???

 

Thank you very much in advace!!

[goutham31]

Gurus,

 

My question is regarding maintaining status during H1B Visa. I completed my Masters in the US and had my H1B visa approved last year, valid for 3 years from Oct 2013 until Sep 2016. I am working for employer 'A' now which holds my H1B visa. I have received an offer from employer 'B' and they are going to file for my H1 next week through regular processing. They anticipate to get the receipt number from USCIS in 2-3 weeks after the filing for H1B. I would give 2 weeks notice to my employer 'A' once I have the receipt number from employer 'B'.

 

My concern is my employer 'A' is located on the East Coast and employer 'B' is located on the west coast. I plan to take 1 week break after I officially terminate my employment with employer 'A', to ship my car from east coast to west coast, fly and move-in to the new place on the west coast. Would I be on a legal status during this 1 week period? Is it safe even to take this break? If not, if my last work date with my employer 'A' ends on a Friday, should I be starting work with my new employer 'B' on the preceding Monday? Please let me know.

[Attorney_23]

Gurus,

 

My question is regarding maintaining status during H1B Visa. I completed my Masters in the US and had my H1B visa approved last year, valid for 3 years from Oct 2013 until Sep 2016. I am working for employer 'A' now which holds my H1B visa. I have received an offer from employer 'B' and they are going to file for my H1 next week through regular processing. They anticipate to get the receipt number from USCIS in 2-3 weeks after the filing for H1B. I would give 2 weeks notice to my employer 'A' once I have the receipt number from employer 'B'.

 

My concern is my employer 'A' is located on the East Coast and employer 'B' is located on the west coast. I plan to take 1 week break after I officially terminate my employment with employer 'A', to ship my car from east coast to west coast, fly and move-in to the new place on the west coast. Would I be on a legal status during this 1 week period? Is it safe even to take this break? If not, if my last work date with my employer 'A' ends on a Friday, should I be starting work with my new employer 'B' on the preceding Monday? Please let me know.

 

Generally speaking, an H1B worker would not be considered to have violated his status while a timely-filed change of employer petition is pending.

[ron1978]

Hi

I had approved H1 b petition in 2007 but not stamped, can I still go for visa stamping.I am India.

[Attorney_20]

Hi

I had approved H1 b petition in 2007 but not stamped, can I still go for visa stamping.I am India.

Generally, you need to have been counted against the H1B cap and entered the U.S. in H1B status to qualify for up to 6 years of H1B time.  You were counted against the numerical cap because of the H1B approval.  But you did not enter the U.S. in H1B status since getting the visa number 8 years ago.  It is likely that you will need to apply for a new cap number next cap season (April 2016).

[Saikumar.ya@gmail.com]

Hi, i have applied for h1b and got an RFE regarding employer-employee relation ship.

To support that i got all the required documents including client letter but from implementation vendor he doesn't put any client details in the letter.I am having EVVC model.

Please advice me how to proceed with it

[L2EADGC]

Hi Attorney,

 

 we are in critical situation. My wife's H1B extension has been denied, She is working for the same employer and same state client since last 7 years. Her extension has been denied and Her current I94 already expired. Her employer filed a new H1B as CP and we got a RFE last week for speciality occupation, Attorney is working on the RFE. She is not working now, but she is still here. With the new H1B receipt number, Is she back in status ? What options do we have now ? Will it be an issue in the future for her visa and at port of entry ?

 

Please advice.

[jairichi]

Hi Attorney,

 

 we are in critical situation. My wife's H1B extension has been denied, She is working for the same employer and same state client since last 7 years. Her extension has been denied and Her current I94 already expired. Her employer filed a new H1B as CP and we got a RFE last week for speciality occupation, Attorney is working on the RFE. She is not working now, but she is still here. With the new H1B receipt number, Is she back in status ? What options do we have now ? Will it be an issue in the future for her visa and at port of entry ?

 

Please advice.

In believe she is accumulating illegal stay in US as her I94 has expired.

[myvisakumar]

Hi Attorney,

                 I am working in "A" company, my H1b expires on August 25 2015. i got another offer from "B" company and "C" company. My "B" company told me they have already filed my H1b transfer with normal processing last week due the USCIS premium suspension. My "B" company have not received receipt number yet. Now my current company "A" wants to file my extension and new company "C" wants to do H1b transfer. will it affect my H1b transfer from "B" company. Mostly i wanted to work with "B" company if in case my B company visa get denied. i can not stay in USA. so i have got another offer and my current company also doing extension. 

 

If i got all three approvals. if i wanted to work with B company. will it be a problem?

 

If my "B" company asks me to join after the receipt number issued. is it ok to join? if it gets denial also i have "C" company visa process is going on. so i can join with "C" company. is it possible?

 

How is visa denial for transfer case in 2015? is it more or less? my "B" company is one of the 500 fortune companies but every case is different? i am little worried...

 

Please advice.

[vijayreddy80]

Hi,

I have a peculiar situation.

I am currently working for Employer E1 with client C1. I recently came to US on 22nd June to work for client C1. I am on H1 visa which is expiring on 31-Aug-2015. I am supposed to go back to India on 22nd July and start back with my family(wife& two kids) on 25th July to start working at a different location with client C2 on 27th July. As, this travel date is too close to 31-Aug-2015(when my H1 visa expires), my employer E1 is asking me not to travel, as I might get into issues at port of entry. My employer is willing to start applying for H1 extension/amendment sooner in next week.

Based on the above scenario, I think I have below options.

1. If I get a LIN# or extension receipt # before my travel(22nd July), is it safe for me and my family to travel back into US?

2. If I get a LIN# before my travel(22nd July), is it safe if just my family travel by themselves into US?

3. Even If I don't get a LIN# before the travel date, is it okay to ask my family to come by themselves? 

4. The last and safest option I see is, If I wait till the premium processing is opened (hoping after July 27th), and then go to India once I get extended H1(which would be by mid September), get visa stamped for me and my family and we all come together back to US.

I would have to get my son joined in a school, and anything after September is a problem again.

 

Please suggest me. Appreciate your response.

[vpgour]

Dear Sir/ Madam

I am in my 9th year of H1B.

I worked for company A and they filed for my GC in EB3 with PD 12/30/2011.

My I140 was approved in 09/2012.

I changed employer in 11/2014, H1 was approved for the new employerB for 3 years based on I 140 approved for Employer A

Due to certain conditions I am looking for changing the job, I have not moved forward with my current employerB to file PERM, no labor is filed with new employerB

I believe EmployerA have revoked I140 by now.

Can I change employer now based on my H1 stamped in Jan 2015 valid till Oct 2017.

I believe If H1 transfer is allowed that will be valid till Oct 2017 only. Is this true and how to proceed or I will have to leave USA, since I no longer see myself working for the current employer B.

 

 

Please do advise and guide.

 

Many regards,

[jairichi]

 

Dear Sir/ Madam

I am in my 9th year of H1B.

I worked for company A and they filed for my GC in EB3 with PD 12/30/2011.

My I140 was approved in 09/2012.

I changed employer in 11/2014, H1 was approved for the new employerB for 3 years based on I 140 approved for Employer A

Due to certain conditions I am looking for changing the job, I have not moved forward with my current employerB to file PERM, no labor is filed with new employerB

I believe EmployerA have revoked I140 by now.

Can I change employer now based on my H1 stamped in Jan 2015 valid till Oct 2017.

I believe If H1 transfer is allowed that will be valid till Oct 2017 only. Is this true and how to proceed or I will have to leave USA, since I no longer see myself working for the current employer B.

 

 

Please do advise and guide.

 

Many regards,

 

New employer needs to file a cap exempt H1B petition and your approval will be till the 3 years approval you got with employer B based on A's I-140.

[Attorney_21]

8yrs EB3toEB2:

 

If your I-140 is revoked, no further H1B extensions are available to you - you are no longer eligible. (Are you certain that the I-140 has been revoked? Most employers actually don't bother revoking I-140s, since they are not legally required to do so).

 

We have had some success in this scenario filing "change of employer" H1B petitions, without requesting an extension of stay - in other words, the new H1B petitioner would just ask for an H1B approval valid until October 2017 (the period of H1B status that you have already been granted).

 

You should contact MLF at (410) 356-5440 and schedule an attorney consultation if you wish to discuss this strategy in greater detail.

[ashrendra]

Hi, myself and my spouse were working in USA for 5 years from 2008 to 2013 with my L1B visa through our employer and in 2013 we both returned back to india as our visa maxed out. Now in 2014 lottery my spouse got H1B visa from his company and he travelled to USA in June 2015, and currently I am in India. I applied for h1 through a new company in 2015 lottery and I got it selected in this year lottery, and now my question is I want to join my husband in USA in August through my H4 visa. So in this situation -

1. Will my H1 petition still be valid even after I go to USA with my H4 visa?

2. Should I get my h1 stamped in India before going to USA?

3. Can I go to USA with my h4 visa and do a COS to h1 and start working from oct 2015 and go to Canada for my visa stamping?

[jairichi]

1. Yes, as long as employer does not revoke it.

2. If you want. But, there is a possibility that H4 visa might be canceled.

3. Not you but an employer can file for a COS to H1B. Will your employer be willing to pay twice for a H1B petition?

[pravbbabu]

Hi Attorney,

 

My question is regarding maintain status of H4 Visa of my dependents who will be travelling to india for 8 months while the visa extension is in progress with USCIS (My H1 and dependents H4 extension petition is in progress with USCIS).

 

coming to details, My H1B & dependents H4 visa has validity till Sep 24 2015 and my employer filed extension for me (H1) and dependents (H4) and received receipt numbers for both on June 15 2015 and still  the status is at first step "USCIS received case".

 

My dependents want to travel to India on August 10th and petition will be in progress at USCIS during that time and what will be impact on dependents visa H4? will it be extended along with my H1B visa or any other risk seen here. Please advise.

 

Thank you,

 

[FoBquery]

Hello!

I work in a higher-ed institution and my employing department applied for a H1B visa. I have received an RFE on 12/22/17. My OPT expires on 1/15/18. I have my advanced degrees from the same institution I work for. The RFE is citied on the basis of "speciality occupation". Do I still have time to slip back into F1 status by enrolling to another program? I graduated from a non-STEM program on 12/16/16 and started my OPT on 01/16/17. The fall semester beings only on 8/29. In which case, 60 days after my OPT expires will be 3/17 and 5 months from that day will land me on 8/17. What will be my status between 8/17 and 8/29?

In case I am able to get an I-20 for the Spring Semester (starting 01/08/2018), but don't enroll for classes, can I defer it to Fall 2018 and still be considered in status?

Can my employer change the SOC code at this time?

Thank you