H1 Transfer RFE and employer sent on unpaid leaves


Rajma2004

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Dear all,

 

After getting an offer my new employer 'B' filed H1B transfer petition in PP (direct employee) and after receipt notice, I left company 'A'. I joined new employer 'B' on 25th July. However by that time we received RFE on my transfer. My attorney asked my employer to send me on unpaid leave on joining date evening itself. So my 'B' company send me letter that I am sent on unpaid leaves until my Visa issue/RFE is resolved.

 

Now meantime we responded to RFE and now again got another RFE today. My questions as as below -

 

1. Is it legal to send me on unpaid leaves by employer 'B'? If not what is the way of resolving it? Please guide me link on USCIS website for the specific law/rule.

 

2. If employer/attorney don't agree, what are the ways to make them understand / legal ways.. 

 

Please advise asap. Appreciate your quick response.

 

Thanks,

Raj

 

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You are out of status if you are not working.

There is no such thing as unpaid leave on H1, in particular not if it is forced by the employer.

File a complaint with DOL on form WH4. And find a better employer.

Thank you JoeF for your valuable response.

 

When I discussed with my attorney he said that I was out of status for around 45 days as my ex-employer have not filed my H1b extension timely (duration from 4/9/2016 to 5/22/2016). They filed it on 5/23 with receipt date. That's why I am out of status and sent on unpaid leave. Please advise.

 

Thanks,

Raj

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Also at the same time we responded to RFE regarding this untimely filing of RFE and they again asked for more evidences from ex-employer in new RFE for same reason. We are not sure why they asked it again. However we are responding again with particular declaration and one of email evidence where it was case of negligence from my old employer.

 

Meanwhile my ex-employers petition extension also shows RFE (with response expected by Aug 21). I am assuming it is due to same reason.

 

In this case what are chances of approval of both H1-B? Kindly advise. 

 

Appreciate your response on this.

 

Thank you.

 

Raj

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Thank you very much JoeF for your quick response. I really appreciate it.

 

Meanwhile, my attorney told me that as my petition was not filed timely by ex-employer (expired on 4/09/16 and was filed extension on 5/23/2016 - around 45 days late), Due to this he advised my new employer to send me on unpaid leaves.

 

Not sure if this is legal. Please advise. Many thanks in advance.

 

Regards,

Raj

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Thank you JoeF for your response.

 

My attorney also is saying same. However he said that if USCIS will send my approval notice with new i94 dates in that case it is not needed to go out of country.

 

My question more over was that - does my attorney is right regarding sending me on unpaid leaves with reason as I was not on valid status from 4/10/2016 to 5/23/2016. Please advise,

 

Thanks,

Raj

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Thank you JoeF for your help and advise. One more question -

 

Do you mean that I will get approval without i94 in my case?

 

Nobody can know what you will get. It could be a denial, or an approval.

But if it is an approval, it likely would be without an I-94.

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Hi JoeF

Great to share that USCIS sent me approved petition with I 94. Probably this may be useful for all who are seeking help on such cases.

I would like to advise all h1b transfer guys to never resign before approval if your company 'A' petition is in processing (amendment or extension).

Thanks for your help.

Regards,

Raj

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