7th year H1B transfer/extension denied. I-140 approved. urgent!!! please help

[kauphy]

Hi all,

 

My 6th year H1 ended on Sep 30, 2013. 

 

I have an approved I-140 with company A. I left company A in 2012 and moved to company B and I got laid off from company B in November 2013, i immediately found another company C and they filed my H1B transfer in premium processing in Nov 2013, I got RFE asking why I am eligible for extension for which I submitted the I-140 approval copy and now on USCIS website, the case status says denied, My attorney is waiting for the denial notice to know the exact reason for denial as we are clueless since we submitted the I-140 approved copy as asked in RFE. 

 

My questions:

1. can I now file a new H1B transfer with a new company D based only on my approved I-140 copy and since I am considered out of status although my attorney from company C says we cannot rely on online status.

2. can I stay here in USA and do the H1B transfer with company D if my attorney from company C chooses to appeal MTR on the denial notice at the same time.

3. If I cannot transfer H1B and went back to India, can I file a new H1B petition with company D based only on my approved I-140 copy (not in H1B cap) and go for consular processing in India and get the visa stamping done with company D.

4. what are my other options now.( such as transferring to H4 dependent, B2 visitor..etc)

 

[jairichi]

Hi all,

 

My 6th year H1 ended on Sep 30, 2013. 

 

I have an approved I-140 with company A. I left company A in 2012 and moved to company B and I got laid off from company B in November 2013, i immediately found another company C and they filed my H1B transfer in premium processing in Nov 2013, I got RFE asking why I am eligible for extension for which I submitted the I-140 approval copy and now on USCIS website, the case status says denied, My attorney is waiting for the denial notice to know the exact reason for denial as we are clueless since we submitted the I-140 approved copy as asked in RFE. 

 

My questions:

1. can I now file a new H1B transfer with a new company D based only on my approved I-140 copy and since I am considered out of status although my attorney from company C says we cannot rely on online status.

2. can I stay here in USA and do the H1B transfer with company D if my attorney from company C chooses to appeal MTR on the denial notice at the same time.

3. If I cannot transfer H1B and went back to India, can I file a new H1B petition with company D based only on my approved I-140 copy (not in H1B cap) and go for consular processing in India and get the visa stamping done with company D.

4. what are my other options now.( such as transferring to H4 dependent, B2 visitor..etc)

First check with company A whether they have revoked your I140.

[t75]

You need to wait until you know the reason and discuss your options with an attorney based on the reason.

[kauphy]

Attorney just updated that they have not received email nor mail , anything from uscis yet about the case status,strange that they did not even get email as it is premium processing about the case updates, how long will it take to receive denial notice in mail???

[jairichi]

Attorney just updated that they have not received email nor mail , anything from uscis yet about the case status,strange that they did not even get email as it is premium processing about the case updates, how long will it take to receive denial notice in mail???

A week.

[kauphy]

We got the denial reason and the reason is my I-140 got revoked in 2012, my company got letter from uscis explaining the reason for denial and it mentioned " The beneficiary may remain in the current non immigrant status until the expiration date indicated on Form i-94 ( my i-94 expires on May, 2015). is that true?? what are my options now. can i stay in this country now for couple of months without transferring to H4 or F1 ?? if i stay outside of country for 1 continuous year and come back on h4, file for h1b then and start gc processing, can i port the priority date in  i-140 approval notice which my previous company revoked in 2012??please let me know.

[jairichi]

We got the denial reason and the reason is my I-140 got revoked in 2012, my company got letter from uscis explaining the reason for denial and it mentioned " The beneficiary may remain in the current non immigrant status until the expiration date indicated on Form i-94 ( my i-94 expires on May, 2015). is that true?? what are my options now. can i stay in this country now for couple of months without transferring to H4 or F1 ?? if i stay outside of country for 1 continuous year and come back on h4, file for h1b then and start gc processing, can i port the priority date in  i-140 approval notice which my previous company revoked in 2012??please let me know.

My hunch was right. Yes, you are allowed to stay till your I94 expiry date. Mean time an employer can start your GC processing and you can retain the priority date.

[Attorney_15]

If someone has an approved H1B, that H1B generally remains valid even if it was based on an I140 that is later revoked. One could try and seek an extension of H1B status for 12 months based on the Labor Certification underlying the revoked I-140 petition. Based on the language used in the AC21 law this likely has a very small chance of sucess. The Murthy Law Firm has been successful in one instance with making such an argument. However, past success is (unfortunately) absolutely no guarantee of future success - even with the same issue.

[kauphy]

My h1b transfer got denied on Dec, 28th 2013 and previous company revoked h1b on dec 31st, 2013. my attorney got the denial notice in mail on jan 6th , 2014 for which my attorney directly called and spoke to uscis officer regarding the reason for denial and adding an additional request to the exisiting petition to grant change of employer until i-94 expiry. uscis officer replied today to my attorney saying since previous company revoked my h1b, there are no grounds for change of employer or transfer. my attorney told me the reply she got from uscis today. my attorney also said that she can file for h4 petition based on extraordinary circumstances exception using 8 CFR 248.1(b) rule. i have my previous company PERM labor petition filed in Jan 2013 although I am not sure if it is revoked or not as they have revoked my h1b.

 

1. Based on the PERM labor filing from last year, can I get atleast 1 yr of H1B.

 

I also had the following questions regarding H4. 

 

1. As soon as I file H4 petition and get a receipt notice for that, will I still be considered out of status or in-status now that I have the H4 receipt notice

 

2. While the H4 petition is in pending state and I move back to India, if the petition gets denied, will that have any affect on my future H4 petitions if I decide to go for consular processing for H4 visa after 1 year in India

 

3. Will the denial of H4 petitions have any affect on my wife's H1 visa or her Green Card processing in anyway

 

4. In your opinion, is it better to just leave the country next week or go ahead and file the H4 petition immediately.

 

5. Will this H4 thing work out for me or should i leave the country immediately as early as tomorrow or how much time do i have 

[kauphy]

is there any way i can apply for a new H1B petition based on PERM LABOR FILING 365 day rule, will that rule apply in my case even though the labor would have been revoked by my previous company as my previous company started my PERM labor a year ago in Jan 2013. I am not sure about its status if it has been revoked or not (most probably it might be 
revoked).

[jairichi]

 

My h1b transfer got denied on Dec, 28th 2013 and previous company revoked h1b on dec 31st, 2013. my attorney got the denial notice in mail on jan 6th , 2014 for which my attorney directly called and spoke to uscis officer regarding the reason for denial and adding an additional request to the exisiting petition to grant change of employer until i-94 expiry. uscis officer replied today to my attorney saying since previous company revoked my h1b, there are no grounds for change of employer or transfer. my attorney told me the reply she got from uscis today. my attorney also said that she can file for h4 petition based on extraordinary circumstances exception using 8 CFR 248.1(b) rule. i have my previous company PERM labor petition filed in Jan 2013 although I am not sure if it is revoked or not as they have revoked my h1b.

 

1. Based on the PERM labor filing from last year, can I get atleast 1 yr of H1B.

 

I also had the following questions regarding H4. 

 

1. As soon as I file H4 petition and get a receipt notice for that, will I still be considered out of status or in-status now that I have the H4 receipt notice

 

2. While the H4 petition is in pending state and I move back to India, if the petition gets denied, will that have any affect on my future H4 petitions if I decide to go for consular processing for H4 visa after 1 year in India

 

3. Will the denial of H4 petitions have any affect on my wife's H1 visa or her Green Card processing in anyway

 

4. In your opinion, is it better to just leave the country next week or go ahead and file the H4 petition immediately.

 

5. Will this H4 thing work out for me or should i leave the country immediately as early as tomorrow or how much time do i have 

 

1. You are out of status from Dec 28th 2013. Your COS to H4 would be denied due to this reason and probably you would need to go for a H4 visa stamping. But, if your attorney said that COS to H4 is possible then it could be the case. As long as a decision is pending with USCIS you will be considered in status but as I said above you are already out of status and mere filing of H4 COS petition would still consider you out of status.

2. The moment you leave US when COS to H4 is pending it would be considered as abandoning of petition. But, it will not affect your H4 visa stamping.

3. No.

4. Better to leave the country. I would suggest to talk to an independent immigration attorney.

5. Refer 4.

[kauphy]

Company B filed my perm labor on Jan , 2013 and in a week, it will be 365 days and its still in pending status,  the PERM IS STILL ACTIVE. can i file a new h1b petition with any employer now and get 1 yr H1B visa and get it stamped in India and come back. Is it possible????

[jairichi]

Company B filed my perm labor on Jan , 2013 and in a week, it will be 365 days and its still in pending status,  the PERM IS STILL ACTIVE. can i file a new h1b petition with any employer now and get 1 yr H1B visa and get it stamped in India and come back. Is it possible????

If you are confident that PERM is still active then based on PERM pending for more than 365 days an employer can file a cap exempt H1B petition.

[mannyr2k]

I worked for company A for 10 years.  I have been in US for 7 years now.They filed my GC in Eb3 and got I40 approval. Company B offered me fulltime opportunity and they transferred my  H1 visa till 2016 based on I140 approval. Company B promised me to do Eb2. They are not doing now. Company A revoked my I140. I am planning to transfer my H1B to company A again or company C. Is it possible to get H1 transfer for same duration till 2016??? Can Company A re- initiate 

my I140 again??

 

Please let me know.

[jairichi]

 

I worked for company A for 10 years.  I have been in US for 7 years now.They filed my GC in Eb3 and got I40 approval. Company B offered me fulltime opportunity and they transferred my  H1 visa till 2016 based on I140 approval. Company B promised me to do Eb2. They are not doing now. Company A revoked my I140. I am planning to transfer my H1B to company A again or company C. Is it possible to get H1 transfer for same duration till 2016??? Can Company A re- initiate 

my I140 again??

 

Please let me know.

 

Yes, your cap exempt H1B petition filed by a new employer will be valid till 2016. I do not know whether I-140 could be re-initiated.

[SRDBA]

kauphy, were you able to successfully transfer your H1B to Company A or C until 2016? Did you submit the revoked I140 copy when doing this H1B transfer?

[SRDBA]

 

I worked for company A for 10 years.  I have been in US for 7 years now.They filed my GC in Eb3 and got I40 approval. Company B offered me fulltime opportunity and they transferred my  H1 visa till 2016 based on I140 approval. Company B promised me to do Eb2. They are not doing now. Company A revoked my I140. I am planning to transfer my H1B to company A again or company C. Is it possible to get H1 transfer for same duration till 2016??? Can Company A re- initiate 

my I140 again??

 

Please let me know.

 

 

mannyyr2k, were you able to transfer the H1B until 2016 to company A or C? Did you attach the revoked I140 during this latest H1b transfer to company A or C. Please let me know, urgently if possible. thank you so much in advance.