H1B - H4 COS RFE received -- Reasons for late filing

[asheeshv]

Hello,

 

My wife entered on H-4 visa in December 2012. Her H1B was filed in April 2013, but her H1B I-797A approval came through in December 9th, 2013. However during this time, we had a second child on November 16th, as a result of which my wife decided not to go ahead with her employment, and since she didn't work she didn't have any pay-stubs as well. The employer in the meantime decided to revoke my wife's H1B petition, and the revocation was approved on December 31st, 2013.

 

The employer however, didn't inform us that they've gone ahead with the revocation. We came to know only on the Jan 10th that her H1B petition has been revoked. As a result, I filed her I-539 COS from H1B to H4, which was accepted and a receipt number generated dated January 13th, 2014.

 

However, on Feb 14th, 2014, we received a RFE for her I-539 COS. They've asked for the following documents, which we will provide:

 

1. Approval notices from USCIS.

2. Revocation notices from USCIS.

3. Existing H-4 visa stamps

 

Reason for late filing:

They're asking for a statement explaining the delay in late filing of I-539 application, since the H1B petition was revoked on December 31st, 2013 and USCIS received our I-539 application on January 13th, 2014. 

The truth is that we were not informed by the employer that they've gone ahead and revoked the petition. As soon as we came to know that the petition is revoked, we filed for I-539 COS. I sincerely need advice on how to prepare a statement towards the RFE response. I'm planning to state the truth, which is what the reality is.

 

1. Should I also attach my wife's delivery, and my newly born child birth certificate?

2. Also, should I attach my approved H1B notice, even though the USCIS haven't asked for?

3. What are the chances of her COS getting rejected? If it gets rejected, then does that mean she has to exit the country, and can she travel back on her current and valid H-4 visa?

4. In case of a rejection, can she go to Bahamas and then travel back to US on the current visa? Would she have to travel to India?

 

I'd really appreciate any help in this regard.

Thanks,

Asheesh

 

 

[jairichi]

Hello,

 

My wife entered on H-4 visa in December 2012. Her H1B was filed in April 2013, but her H1B I-797A approval came through in December 9th, 2013. However during this time, we had a second child on November 16th, as a result of which my wife decided not to go ahead with her employment, and since she didn't work she didn't have any pay-stubs as well. The employer in the meantime decided to revoke my wife's H1B petition, and the revocation was approved on December 31st, 2013.

 

The employer however, didn't inform us that they've gone ahead with the revocation. We came to know only on the Jan 10th that her H1B petition has been revoked. As a result, I filed her I-539 COS from H1B to H4, which was accepted and a receipt number generated dated January 13th, 2014.

 

However, on Feb 14th, 2014, we received a RFE for her I-539 COS. They've asked for the following documents, which we will provide:

 

1. Approval notices from USCIS.

2. Revocation notices from USCIS.

3. Existing H-4 visa stamps

 

Reason for late filing:

They're asking for a statement explaining the delay in late filing of I-539 application, since the H1B petition was revoked on December 31st, 2013 and USCIS received our I-539 application on January 13th, 2014. 

The truth is that we were not informed by the employer that they've gone ahead and revoked the petition. As soon as we came to know that the petition is revoked, we filed for I-539 COS. I sincerely need advice on how to prepare a statement towards the RFE response. I'm planning to state the truth, which is what the reality is.

 

1. Should I also attach my wife's delivery, and my newly born child birth certificate?

2. Also, should I attach my approved H1B notice, even though the USCIS haven't asked for?

3. What are the chances of her COS getting rejected? If it gets rejected, then does that mean she has to exit the country, and can she travel back on her current and valid H-4 visa?

4. In case of a rejection, can she go to Bahamas and then travel back to US on the current visa? Would she have to travel to India?

 

I'd really appreciate any help in this regard.

Thanks,

Asheesh

Actually your wife had 60 days to report to H1B employer once H1B petition was approved as COS. There is no rule that employer has to inform your wife about H1B revocation. If she is not working for employer they have to revoke H1B according to immigration laws. 

 

1. If she was on maternity leave then submit those relevant documents. What difference it would make to USCIS if you submit related documents if she was not on maternity leave?

2. You can.

3. Should not be a problem in getting COS approved. If she has a valid H4 visa she just needs to cross the border and get a valid I94 based on her H4 visa and copy of your I797.

4. Refer 3.

[pontevecchio]

You should give the firm of Murthy or any of your choice a call as an appropriate response will make the problem go away. She changed status to H1 on December,9 and had 60 days to report. Hence her COS now to H4 should be no problem. Secondly the employer did not terminate her in writing . Spend a few hundred on a Lawyer. This is no time for hesitancy. Most likely a Lawyer can sort it out.

[t75]

They should have revoked since she did not report for work. Why did she waste the filing and deny a legitimate worker the opportunity to do so?

[asheeshv]

Thanks for the reply folks. I've gone ahead and scheduled a 20 minute consultation with one of the Murthy attorneys who can help me in sorting this issue. Thanks for your advice nonetheless. t75, my wife had all intentions to work, which is why the H1B was filed on her behalf. However, after delivery, she wasn't in a position to start work immediately, and the employer wasn't willing to extend the timelines, as a result, they revoked her petition. Sometimes circumstances change, so I wouldn't say if that's a wastage of filing, but that's your own opinion, and I respect that.

[pontevecchio]

It is her right to be considered for a H1 petition. Things changed. She can make use of that H1 cap approval later on. This is by no means a Socialist Republic. Is it?

[asheeshv]

Latest update folks:

 

I spoke with the Murthy  lawyer, and she mentioned that there's a 75-25 chance (75 in favor of COS getting approved). However, I need to pay $1500 or more for this, since the response would involve sending affidavits, and a reply with the proper legal language. The lawyer was very helpful, and she recommended another option. The lawyer suggested was to leave the country immediately to say Jamaica for a weekend, and then come back, that'd null and void the COS application, and she'd be granted a new I-94 at the port of entry. She did recommend to send the RFE response anyway, stating that the beneficiary exited the country,  since that wouldn't leave a negative remark in the record.

 

If you guys have any other comments please feel free to let me know.

[jairichi]

Latest update folks:

 

I spoke with the Murthy  lawyer, and she mentioned that there's a 75-25 chance (75 in favor of COS getting approved). However, I need to pay $1500 or more for this, since the response would involve sending affidavits, and a reply with the proper legal language. The lawyer was very helpful, and she recommended another option. The lawyer suggested was to leave the country immediately to say Jamaica for a weekend, and then come back, that'd null and void the COS application, and she'd be granted a new I-94 at the port of entry. She did recommend to send the RFE response anyway, stating that the beneficiary exited the country,  since that wouldn't leave a negative remark in the record.

 

If you guys have any other comments please feel free to let me know.

Good that you talked to an attorney. Take the second route of going outside US for H4 visa stamping. Your spouse would need a copy of your I797 for H4 visa.

[asheeshv]

Thanks, Jairichi. She has a valid H-4 visa, valid till September 2015, so I believe she wouldn't need to go for a visa stamping.  One thing that I forgot to ask was that is it better to withdraw the I-539 RFE before departing for Jamaica, or is it better to respond to withdraw the RFE after coming back to the US?

The only tricky part, I'm not sure even if it's a tricky part, would there be a problem at the Port of Entry, if I exit US without withdrawing the RFE, or would it be safe to withdraw the RFE, once USCIS accepts that withdrawal, and then enter US?

Any help would be useful.

[jairichi]

Thanks, Jairichi. She has a valid H-4 visa, valid till September 2015, so I believe she wouldn't need to go for a visa stamping.  One thing that I forgot to ask was that is it better to withdraw the I-539 RFE before departing for Jamaica, or is it better to respond to withdraw the RFE after coming back to the US?

The only tricky part, I'm not sure even if it's a tricky part, would there be a problem at the Port of Entry, if I exit US without withdrawing the RFE, or would it be safe to withdraw the RFE, once USCIS accepts that withdrawal, and then enter US?

Any help would be useful.

The moment she leaves US soil her COS gets abandoned. There would be no need to withdraw. If you would like to then you can certainly send a request to USCIS after entering US on H4 visa.

[asheeshv]

All,

 

Just wanted to post an update on this. So I traveled with my wife to Jamaica last weekend. Going to Jamaica wasn't any problem. Indians don't need a visa there. Came back after a day, and the port-of-entry was Atlanta. The immigration officer took my  new H1B approval papers, and gave me and my wife a new approved stay till November, 2016.  So, her old status would've been cleared now, as she is in a new H-4 status now.

I did respond to the RFE by stating that I'm withdrawing the COS application without prejudice, so it wouldn't matter any more.

 

Thanks to the lawyer at Murthy.com, and the folks here who helped me out during this situation. Much appreciated!

 

Asheesh

[tara12]

Hi,

I have a question

my situation: I was on h4 got my h1b started 1stOCT . however, my consulktant is not able to get me job.So i am planning to go ouside us and re-enter on h4 again. Is it possible? {i dont have any pay slipis}

Can i transfer my h1b petition to new employer if i re-enter on h4 ?

[jairichi]

 

Hi,

I have a question

my situation: I was on h4 got my h1b started 1stOCT . however, my consulktant is not able to get me job.So i am planning to go ouside us and re-enter on h4 again. Is it possible? {i dont have any pay slipis}

Can i transfer my h1b petition to new employer if i re-enter on h4 ?

 

You can exit and enter US with a valid H4 visa and a copy of your spouse's I797.

Without working for employer who filed cap subject H1B petition you cannot transfer the petition to another employer.

[tara12]

If i re-enter on h4......and later if I  get a job I think new employer can apply cap execmpt h1b for me? 

[jairichi]

If i re-enter on h4......and later if I get a job I think new employer can apply cap execmpt h1b for me?

USCIS interpretation from 2014 is if beneficiary did not work for cap subject employer then beneficiary is no more cap exempt. Talk with an attorney from Murthy law firm.