H1B Approval and Extension of Stay Denied


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Hello Everyone,

I have a visa validity with company A till Dec 2018.
After coming to us I got offer from Company B in the month of June 2017 and they filed H1B transfer. As premium processing was not available this year they filed H1B transfer petition in regular process.

I joined company B on August 1st based on H1B transfer receipt. Now I received RFE on October 4th (Last date to reply RFE is Dec 23rd ) that "Candidate was not in United States physically when the transfer was filed. Please prove candidate physical presence in US" (They did not ask for anything else)


I was actually out of country for 15 days in the month of June. It was on approved vacation from my previous company A and was successfully able to reenter into United States after it.

I told about my vacation plan to company B petitioner - However due to mistake at their end they filed the transfer when I was not in United States.
Company B petitioner agreed that it was their mistake. They also said that they will reply to RFE that it was their mistake so do not penalize the candidate and worst case out come of this would be H1B petition getting approved and extension of stay being denied. If H1B petition is approved - I can use new Company B approved petition and company A visa till Dec 2018 to reenter United States on same day by going out of country like Mexico. 

My questions:

1. Is there a such thing as H1B petition approval and extension of stay denial scenario in a H1b transfer case ?

2. Is there any chance where USCIS consider petitioner  request and with good heart approves my H1B and extension of stay ?

3. If H1B petition approved and extension of stay is denied -

3.a. Should I go to Mexico and come back on same day for new I-94 ? What should I say to immigration officer about my one day visit ?

3.b. To reenter into US I need physical  copy of my I-797 in my hand - Which takes about 2 weeks However as per company B policy - I will be out of payroll the moment they receive notice. Should I wait in US with out payroll for physical copy for 2 weeks and go out and come back to US or go to India wait for documents and come back with documents?

4. There is a good chance that I get denial (: I planned to get it in premium however when should I reply to RFE -

4.a. Can I reply to RFE in November so that I get denial in 2 weeks and go back to India to visit cousins marriage.

4.b. Will I be adding bad history to my H1B by replying late ? Should I reply ASAP or Should I go to India immediately ?


{ In other case where I get complete denial there is nothing to ask I guess - going to back to India is best option }

Any help , suggestions and inputs would be great help. I'm open  to any views to deal with my situation.

Great Regards,


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  • 7 months later...

Hi VenkatLakshmi,

I read your post and found that my cases very closely resembles that of yours.

My new company filed H1 xfer application when I was on a brief trip to India.

I am very curious to know what happened in ur case?

1) Did u visit India and get a new H1B stamped?

2) Did u reapply for a new i797?

3) Did u join back your previous employer?

Any help could help me take an informed decision.

Thank you


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