After 221(g) refusal, can we do a H-1 transfer OR only file new H-1


Siya

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Posted

Hello All,

I went for my H-1B visa interview at Hyderabad Consulate on May 31st 2011 and received a 221(g) Blue Slip. I haven't heard anything since then. The VO cited Employer-Employee relationship. I am on EVC model. You can read my previous posts to get a better idea of my situation. I am very much convinced that I would be receiving a denial letter soon. Wait period until now is= 4months.

After the current case (221(g)) is refused by the Hyderabad consulate and sent to USCIS to wait for its decision to be re-affirmed or not. At that point what are the choices I have ?

I know there is a way to challenge the decision of USCIS and ask for re-affirmation.

My question is...

Before I and/or my employer challenge the USCIS for re-affirmation, can I apply for a H1 transfer to a new company ? Will my current petition still be valid at that point ?

OR

Will applying a new H-1 petition be a better option ??

Experts, Gurus, please advice. What can/should be done after the case is refused ?

Is there any average timeline for how long the petition re-affirmation might take after it goes back to USCIS ? Please advice. Thx.

Posted

Before I and/or my employer challenge the USCIS for re-affirmation, can I apply for a H1 transfer to a new company ? Will my current petition still be valid at that point ?

Answer:

Since u r in India, u cannot do a transfer. However, u can apply for a new H1B. Your current petition will be valid until ur employer revokes it. But, u dont need to worry about ur current petition. It is ur employer's responsibility to revoke it when u stop working for them.

OR

Will applying a new H-1 petition be a better option ??

Answer:

<Refer to answer above. Apply for the new petition>

Experts, Gurus, please advice. What can/should be done after the case is refused ?

Answer:

Go ahead apply for a new petition. I assume ur new petition will either be filed by ur client or direct vendor. If u apply with same employer or another EVC model, the chances of visa approval is slim.

Is there any average timeline for how long the petition re-affirmation might take after it goes back to USCIS ? Please advice. Thx.

Answer:

This could take months. Ur best bet is to move ahead with a new petition. And, even after ur current petition may be reaffirmed, there is NO guarantee u will be issued a visa based on the reaffirmed petition.

Posted

Hi Siya,

At this point you can't transfer your H1, you need to file new H1 not subjected to CAP. This means you will not fall under yearly CAP limit, so as soon as you new H1 gets approved your start date will be from that date till 3 yrs.

Seems like you have a gut feeling of visa rejection then why are you still waiting on denial notice to come. My suggestion would be go for EC or direct client model and file your new H1 under premium processing, don't wait....

Posted

Siya,Sorry to hear that.Even I am sailing on the same boat.I attended visa interview recently.Did your employer hear anything from USCIS.Please share If you have got any info.

Posted

Thanks tar53.

Do you know in case of a denial, can I still continue work and get paid, until I file my new H-1 (EC model) petition ? Is that legal ?

How will my employer pay me, can he run my payroll on a regular basis ?

I heard both reviews saying its ok and few saying its not ok to get paid after a 221(g) refusal. Please let me know what you think.

freaking221g, neither my employer nor my client were contacted during this time.

Posted

@mgm1451

Thanks for your valuable response. I am curently working on filing a new petition and have few questions.

1. Can I work for my employer to my end client (EVC model) and have my pay roll run while I plan to file 2nd petition ?

2. If I get a refusal (on my first 221g) before my second petition is filed, can I still continue work for my old employer and get paid ?

Please advice. Thx.

Posted

Siya,

As per my knowledge, until USCIS revokes your petition you can be able to work with your old employer. But I'm not sure, better check with your employer's attorney.

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