RFE asking for all paystubs of previous employer.

[rahul12345]

Hello,

My last employer was not running my payroll on regular basis and in 2022 ran payroll for 5 mnths only. Though for this year I have all my paystubs. At start of this year, I found another employer and filed for transfer of visa at end of March 2023. The application was filed in general category. I have an I-140 which was approved back in 04/2018. I got a RFE in August asking to prove I maintained my H1B status with my last employer by submitting proof starting from 09/2021, since start of my H1B with my last employer till 03/2023. USCIS also asked how I was still in US if I have used up 6 years of employment already. Now the lawyer says they might have missed the I-140 that we had attached with the application. 

We answered the RFE back in 09/2023 but missed the part where they were asking for proof starting from 09/2021. We only submitted most recent paystubs for 2023 with my last employer (for Jan, Feb, Mar, and mid-Apr). The lawyer also missed that RFE was asking for proof starting 09/2021. Now its been over 2 months since we send out the reply but haven't heard back anything from USCIS. Lawyer suggested we send out another reply incase USCIS missed out first reply (or it was lost in mail, since its receipt was never updated in my case status online) before the 90 days deadline to reply is over. I gave him all the paystubs I have from 2021 till 2023 and he would be sending another reply today/tomorrow. 

But since I didn't have any required paystubs for 2022, he said the chance of denial is high. 

Has anyone else had similar experience? What are my options in case of denial? What steps can I take considering that denial might happen?

 

[Attorney_24]

If the RFE response was timely received and if the petition is otherwise approvable, the H-1B petition may be approved for Consular Processing (CP) as you were not maintaining status/not getting paid properly during the previous H-1B validity period.  If the entire H-1B petition is denied, then the H-1B will have to be filed again for CP. You may schedule a consult with one of our attorneys to discuss specific questions and options that may be available to you.

[rahul12345]

3 hours ago, Attorney_24 said:

If the RFE response was timely received and if the petition is otherwise approvable, the H-1B petition may be approved for Consular Processing (CP) as you were not maintaining status/not getting paid properly during the previous H-1B validity period.  If the entire H-1B petition is denied, then the H-1B will have to be filed again for CP. You may schedule a consult with one of our attorneys to discuss specific questions and options that may be available to you.

Thank you for the reply. I am working on receipt number currently, if the application is denied, does that mean my employment is also terminated? 

[Attorney_15]

If employment is tied to an I-485-based EAD and the I-485 is denied, then the EAD is no longer valid, although under USCIS guidance it appears that the EAD would be valid still if an MTR is filed challenging the denial and while the MTR is pending. However, one would still be unlawfully present.

 

One potential strategy that could be followed here is to file a complaint against the former employer with the US Dept of Labor for whom you worked but were not paid. USCIS will generally consider this to be a sufficient excuse for non-receipt of wages (by showing the violation is by the employer).