H1B Transfer Denied

[myh1transfer]

Hi,

My H1b transfer petition has been denied after RFE submission. I was with employer A. After initiating transfer process to employer B, upon receiving Receipt number, I started working for employer B from April 1st 2014. On 24th April my h1b with old employer A revoked which was valid till October 2014 and was stamped. We got RFE for employer B on 9th april and responded in time but they denied the petition on july 10th 2014.

 

Reason for denial is discrepancy in documentation provided which shows beneficiary's work location and employee-employer relationship. 

 

I need advice on what are the next options for me?

Do I need to leave the country and in how many days?

Should we go for appeal or re-apply h1b.  

[jairichi]

You need to exit US asap. A new employer can file a cap exempt H1B and if approved it will be through consular processing. Filing an appeal does not give you any status to stay in US.

[rahul412]

Hi,

My H1b transfer petition has been denied after RFE submission. I was with employer A. After initiating transfer process to employer B, upon receiving Receipt number, I started working for employer B from April 1st 2014. On 24th April my h1b with old employer A revoked which was valid till October 2014 and was stamped. We got RFE for employer B on 9th april and responded in time but they denied the petition on july 10th 2014.

 

Reason for denial is discrepancy in documentation provided which shows beneficiary's work location and employee-employer relationship. 

 

I need advice on what are the next options for me?

Do I need to leave the country and in how many days?

Should we go for appeal or re-apply h1b.  

You are currently out of status, file COS to H4 or B2 ASAP.

[myh1transfer]

I do not have h4 options. how b2 will help ? 

 

how about doing Motion to Reopen or Motion to reconsider? 

[myh1transfer]

Thanks Rahul412 and Jairichi for your inputs. 

 

My employer's attorney is looking for doing Motion to Reconsider expecting decision in 30 to 45 days. If response is negative then they will apply for new h1b and i should leave the country.

 

Do i need to visit consulate in foreign country as I have valid visa stamp till october 2014.

 

Can i take the pay from employer during Motion to reconsider? 

 

Thanks once again. 

[jairichi]

I do not have h4 options. how b2 will help ? 

 

how about doing Motion to Reopen or Motion to reconsider? 

You cannot apply for COS to B2 as you are out of status now.

[jairichi]

Thanks Rahul412 and Jairichi for your inputs. 

 

My employer's attorney is looking for doing Motion to Reconsider expecting decision in 30 to 45 days. If response is negative then they will apply for new h1b and i should leave the country.

 

Do i need to visit consulate in foreign country as I have valid visa stamp till october 2014.

 

Can i take the pay from employer during Motion to reconsider? 

 

Thanks once again. 

As mentioned earlier MTR does not give you any legal status to stay in US and there is no set timeline to get a decision. If you stay in US during this time you are actually accruing illegal days of presence in US.

You cannot work or be paid by employer as you being here in US itself is illegal.

[rahul412]

Thanks Rahul412 and Jairichi for your inputs. 

 

My employer's attorney is looking for doing Motion to Reconsider expecting decision in 30 to 45 days. If response is negative then they will apply for new h1b and i should leave the country.

 

Do i need to visit consulate in foreign country as I have valid visa stamp till october 2014.

 

Can i take the pay from employer during Motion to reconsider? 

 

Thanks once again. 

You can' get the MTR response within 45 days. I am sure about it, just search in this forum for MTR.

You are already out of status, file COS to B2 ASAP or leave US.

[myh1transfer]

jairichi,

Thanks for the reply. I get the part that i am out of status and I have to leave country asap. I am on the same page as you guys mentioned and based on my attorney. 

 

Next step, say my current employer file MRT and I leave in next couple of days without waiting for even reply of MTR. Also Can my employer start my new petition? if yes then upon approval i can travel back to USA from home country. Open question is do i need to appear at Visa consulate or I can just travel back in as my passport has visa stamped till Oct 2014. assuming my new petition will be approved before october. 

 

I am definitely not looking for any other options to somehow stay here. 

 

Thanks.

[myh1transfer]

rahul412,

I believe i cannot change my status to B2 as mentioned by jairichi and my attorney. 

 

In case of MTR, my research also says the same that we cannot get the MTR response in 45 days but attorney just want to give a shot. Most probably,MTR will be open but i will leave USA soon so not get into any more unlawful stay. 

 

Do you know if I will be under Cap Exempt or cap subject for re-applying h1b? I have different answers from different lawyers so trying to get the correct answer. 

[jairichi]

jairichi,

Thanks for the reply. I get the part that i am out of status and I have to leave country asap. I am on the same page as you guys mentioned and based on my attorney. 

 

Next step, say my current employer file MRT and I leave in next couple of days without waiting for even reply of MTR. Also Can my employer start my new petition? if yes then upon approval i can travel back to USA from home country. Open question is do i need to appear at Visa consulate or I can just travel back in as my passport has visa stamped till Oct 2014. assuming my new petition will be approved before october. 

 

I am definitely not looking for any other options to somehow stay here. 

 

Thanks.

Yes, employer can still file a new cap exempt H1B petition when you are outside US.

Since you have a valid H1B visa you will need only new I797 if you plan to enter before visa expiry.

[jairichi]

rahul412,

I believe i cannot change my status to B2 as mentioned by jairichi and my attorney. 

 

In case of MTR, my research also says the same that we cannot get the MTR response in 45 days but attorney just want to give a shot. Most probably,MTR will be open but i will leave USA soon so not get into any more unlawful stay. 

 

Do you know if I will be under Cap Exempt or cap subject for re-applying h1b? I have different answers from different lawyers so trying to get the correct answer. 

If you have not used the max allowed stay of 6 years stay on H1B status in US then you are cap exempt.

[rahul412]

 

Do you know if I will be under Cap Exempt or cap subject for re-applying h1b? I have different answers from different lawyers so trying to get the correct answer. 

Since this is not your first H1, you are cap exempt.

[myh1transfer]

Thank you everyone. 

 

Finally my attorney not going for MTR or any appeal. Applying h1b with request to consider as extension of h1b also so if they approve the H1B with extension then i do not have to leave the country.

 

I am not sure if this option have any exposure to folks.  

[myh1transfer]

Guys, I am here with some good news. 

 

My H1B got approved also got the status back with extended i-94. Attorney applied for H1B as Nunc Pro Tunc asking for change of employer(H1B Transfer) and also consider my application in status from the day of denial of earlier petition as the situation was not in beneficiary's control. 

 

I do not have to leave the country and I can start working right away. 

 

Please let me know if any further details required. 

[jairichi]

Guys, I am here with some good news. 

 

My H1B got approved also got the status back with extended i-94. Attorney applied for H1B as Nunc Pro Tunc asking for change of employer(H1B Transfer) and also consider my application in status from the day of denial of earlier petition as the situation was not in beneficiary's control. 

 

I do not have to leave the country and I can start working right away. 

 

Please let me know if any further details required. 

Good to know things went well for you. Thanks for the update.

[Hanna2015]

So great to hear the good news on the nunc pro tunc! I have similar situation and will be filing nunc pro tunc soon. Can you please kindly tell me how long it took your company to file your case? I heard nowadays, the prevailing wage and LCA will take at least 3 months, before the employer can actually file the H1b? Is this correct? Any response will be greatly appreciated!

[H1bISSUEHelp]

@myh1bTransfer and Team,

 

I have a situation, Response needed asap.

My H1B extension has been denied when done by Company A (Old), My i94 has been expired in april - 18.

1) Can i perform a transfer to new company B(New) and wait for the PP to get approved? Will this get me back to status when approved.

2) If my old Company A Performs appeal and new company B files transfer, can i stay in USA and wait for approval? 

In any of these do i need to go for Consular process?

 

Help needed asap. As you know situation gets critical every minute.

Please suggest.