H1 Transfer in 13th year based on Pending/RFE I140

[Agarwal]

Hi,

Can I get a H1 TRANSFER (with a different employer) in my 13th year of H1 ? The I-140 has received RFE (because of 3 year degree) and response for the RFE is supposed to be given by mid. feb. If answer to potential H1 transfer is yes , when is the best time to do that whether before filing RFE response or after that ?

Thanks in advance for your help. Any and all pointers are appreciated.

PS: The reason for H1 Transfer is that HR at current employer is exhausted with years of immigrant efforts and they say that most they will do file RFE for I140 and thats the end of road for me at current company.

-Sincerely

[Agarwal]

Here is the background on my question above:

I started my Labor processing back in Oct'04 when Labor method was RIR (Reduction in recruitment)

When PERM was introduced , we filed another application under PERM. I have a 3 year degree B.Sc. (CS) from INDIA and 1.5 year diploma, combination of that we always have been indicating as bachelor's degree.

Both Labors were approved and they both required Bachelor's degree. Subsequently we filed I-140 under EB2 on both and both I-140 were APPROVED !. At the time time of July 2007 Visa Bulletin Fiasco , we filed AOS under earlier PD, when it came time to adjudication , USCIS denied both I-140. After receiving denial on both we filed a skilled worker EB3 I-140 , hoping to get an approval and additional ability to extend H1 based on pending I-140.

In one of denied EB2 I-140 we did appeal, however appeal was denied and and few short weeks after that; EB3 I-140 after being pending (during the period of EB2 appeal) for 2 years resulted in RFE last month.

We were able to extend my H1 just few weeks back till April' 2014. However we know most likely the response of this RFE which we have to provide by mid feb. will result in a denial as well. Because LABOR requires master degree and 6 months of experience or BACHELOR'S degree and 5 years of experience and all three I-140 denials/RFE USCIS have been arguing that I do not have a Bachelor's degree.

My Company HR is now very adamant that this is the end of road for me and that I will not be able to file an appeal to buy some extra time once the response to this RFE results in denial.

So, I need to secure a job for which I can start a new PERM process immediately and subsequently get I-140 under EB3 approved under new Labor. I know finding an employer is different for such a case, however I have a friend who has a startup who may be able to help me but I need to rather start working for him immediately so I also need a H1 transfer.

So I need to know all legal options/realities for me so that I can make a better decision for me.

I am definitely open to all other pointers which I can pursue on my own, since I dont expect anything from current employer.

I started my Labor processing back in Oct'04 when Labor method was RIR (Reduction in recruitment)

When PERM was introduced , we filed another application under PERM. I have a 3 year degree B.Sc. (CS) from INDIA and 1.5 year diploma, combination of that we always have been indicating as bachelor's degree.

Both Labors were approved and they both required Bachelor's degree. Subsequently we filed I-140 under EB2 on both and both I-140 were APPROVED !. At the time time of July 2007 Visa Bulletin Fiasco , we filed AOS under earlier PD, when it came time to adjudication , USCIS denied both I-140. After receiving denial on both we filed a skilled worker EB3 I-140 , hoping to get an approval and additional ability to extend H1 based on pending I-140.

In one of denied EB2 I-140 we did appeal, however appeal was denied and and few short weeks after that; EB3 I-140 after being pending (during the period of EB2 appeal) for 2 years resulted in RFE last month.

We were able to extend my H1 just few weeks back till April' 2014. However we know most likely the response of this RFE which we have to provide by mid feb. will result in a denial as well. Because LABOR requires master degree and 6 months of experience or BACHELOR'S degree and 5 years of experience and all three I-140 denials/RFE USCIS have been arguing that I do not have a Bachelor's degree.

My Company HR is now very adamant that this is the end of road for me and that I will not be able to file an appeal to buy some extra time once the response to this RFE results in denial.

So, I need to secure a job for which I can start a new PERM process immediately and subsequently get I-140 under EB3 approved under new Labor. I know finding an employer is different for such a case, however I have a friend who has a startup who may be able to help me but I need to rather start working for him immediately so I also need a H1 transfer.

So I need to know all legal options/realities for me so that I can make a better decision for me.

I am definitely open to all other pointers which I can pursue on my own, since I dont expect anything from current employer.

Sincerely

[catx]

You need to consult with a qualified, experienced immigration attorney immediately, and not rely on this or any other Internet forum for information.

From what was posted, it could be that if (when?) there is a final dental of the I-140 petition (because of the bachelors degree issue, which seems likely by the posted information), then there is no basis for a H-1B visa extension, so there is no H-1B visa to transfer, and you would be (retroactively?) out of status. There is a (very) good chance you will have to leave the U.S., and need to start making preparations.