Transferring H1B to Emp C after Emp A petition is withdrwan-With New Question

[vishalshines]

My previous Question for Reference

 

Hi Experts,

 

I worked for employee A on H1B and was on bench for my health issues and they didnt run pay checks in bench time.I applied for sick leave via email and they approved in that time period. Afer one and half month bench time i got a offer from employer B and they applied for H1 transfer in Dec23 2014 and i am working in cleint place with that applied petition. After one month i got RFE asking for bench time pay checks with employer A. We submitted the Leave approval emails for the same period and waiting for approval.

 

Still the petition status is in "response recieved".

 

Employer A has withdrawn my petition in Jan 28th 2015.(Employer B applied for transfer on 23Dec 2014)

 

My visa with Emploer A is valid till Sep 2016

 

 

 

 

Now  i am transfering to Employer C 

 

 

1. Can employer C apply for transfer with Employer B's petition or Employer A's petition (This petition A is withdrawn)

 

 

Please suggest me.

 

 

 

 

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Jairichi Answer:

Based on B's petition. Your H1B will be approved without an I94.

 

 

LivLiv Answer:

C can get their petition approved, but it will not be with I-94, since you are currently not in valid status. (Your status is  pending)

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My NEW questions

 

Thanks a lot for your replies Jairichi and LivLiv

 

1. What if B's petition is not approved while transferring to C

2. What are the chances of B's petition is getting approved? (Can you please see below  for scenario of RFE (Employer B).Thanks)

3. Can i apply for transfer to Employer C after B's petition is denied

4.What are the risks in not getting I-94.

5. Can i cross the border and re enter into US without any Visa interview (As i have valid Visa till Sep'2016).

6. After knowing not having I-94 in status, in how many days we need to cross the border. For example. Can i cross after 3-5 days?

[livliv]

1. B will also not get approval with I-94 and irrespective of B's petition, C will also not get I-94. At the most they will get an approval.

2. Petition may get approved, but without I-94.

3. C can file the petition, but you are out of status and you will have to leave the US.

4. You will be out of status and USCIS will know about it. Every petition and application in future will have extra scrutiny. It is also possible that they determine that you are illegal not just out of status. If that happens there will be a 3 year ban.

5. Yes, but you will need an approved petition.

6. ASAP

[Attorney_21]

1) Until B's petition is approved, C's petition can only be approved for "consular processing" - i.e. without an I-94 (You might actually get an RFE asking for a copy of the approval notice - you can either wait for a decision on B, or "withdraw" the status request and get a consular processing approval notice.)

 

2) Impossible to say with this limited information

 

3) You can apply for a consular processing H1B approval, not for an extension of status (i.e. no I-94) You will need to depart the US and re-enter (and possibly apply for a new visa "Stamp")

 

4) Not sure what you're asking

 

5) Yes, if there has not been a formal USCIS determination that you are "out of status" (such a determination triggers "unlawful presence" and results in the cancellation of your visa "stamp" by virtue of section 222(g) of the Immigration and Nationality Act. Any denial of the "B" petition will likely contain this finding, so be careful...

 

6) See #5 - if there's been a formal USCIS finding that you are "out of status" then your visa stamp is cancelled, and you are required to return to your home country for any future visa applications.