H1B Transfer Denied after RFE Response. What are my options?

[rajson]

Hello All,

I was working with employer A and my visa petition was applicable till April 05, 2017 and I-94 valid till April 15, 2017. I recently joined employer B on H1B transfer receipt (biggest mistake). H1B transfer was filed on 16th November (in PP) and RFE was received on 11/30 due to client letter. My employer and associated law firm responded with client letter (dated 12/6/2016) and other associated documents on 19th December and USCIS denied my transfer application on 12/29 stating that client letter is dated as of 12/6/2016 which is after H1B filing date of 11/16/2016.

I immediately talked to my employer and lawyer and at first they thought that best option is to file a MTR but my work will be in-authorized if MTR is denied and MTR can take months. Later, they came up with a different option to file a H1B transfer petition again with same employer with fresh LCA and with normal processing.

Lawyer told me that as my I-94 is still valid till April 15th, 2017, I am not illegal in US and petition can be filed. I want to know whether filing H1B petition again with same employer again is legal and correct way to proceed. I am not able to understand that as of today, I am in no status, so on what basis transfer can be filed.

Any help or pointers will be greatly appreciated?

Thanks!!

 

 

 

[lari]

Hello ,

I am also in same situation. My transfer denied ,reason was by  the time of  RFE replyed I changed the client in the same zipcode. so my employer told no need of new LCA. Denied it saying need new LCA.

Now same employer  filed new petition again last week, My problem is my old employer revoked my H1on oct 2016 which was valid till may 2017 .

My I 94 is valid till may 2017 from my old employer which was revoked .

Is that I 94 valid or not? Now Am I out of status?

I am waiting for new petition response  .

 

Thanks for any help.

check your old h1 status also.....

 

[JoeF]

You are out of status, which is a form of being illegal.

A new petition would likely only be approved for consular notification, due to you being out of status.

You can also not continue working while a new H1 petition is pending, because you are out of status.

So, you have to leave, and once an H1 petition is approved, you can travel to the US.

[Newlow]

I was in a similar situation last month. My old employer even revoked my i129 petition. The new employer applied for a new H1B out of cap in consular notification in premium processing, it got approved in 2 weeks time(luckily). I had to go out of US and reenter with old employer visa stamp (valid till end of 2018) and new i797 (valid till end of 2019) to get a new i94 based on approved i797. 

 

Please note that you are not accruing any illegal status if your i94 is still valid, i have checked with multiple attorneys to be sure, i94, visa stamp and i129 petition are 3 separate things. However, you are not allowed to work and cannot do another H1 COS/Transfer it has to be a Consular notification. 

After approval, instead of going out of USA, you can go to any of the land borders i94 renewal centers and get a new i94, i talked a couple of people who did that recently, you dont even need to go to Mexico side, on the US side itself there are i94 renewal centers (San Ysidro/Tijuana or Laredo, TX) where they issue you a new i94 

 

Thanks,

Sandy

[JoeF]

1 hour ago, Newlow said:

Please note that you are not accruing any illegal status if your i94 is still valid

That is not quite correct.

A person who is out of status is illegal.

If the I-94 is not expired, the person just doesn't overstay (overstay meaning staying past the validity of the I-94), and doesn't accrue time towards a 3- or 10-year ban.

[lari]

Thanks for the replies ,

Hi, newlow is your i129 petition revoked before or after filing  your new h1 ?

My old employer revoked i129 before my case was denied, now my employer filed new petition. I had a visa stamping till may 2016. 

My revoked i129 and I 94  valid till may2017.

Is that  I 94 valid ?

Is your's also same case? ( regarding revoke)

 

 

[JoeF]

H1 revocation is completely irrelevant. A person is out of status from the layoff on, regardless if the H1 is revoked or not.

The day of layoff is the only thing that matters.