H1 Rejected - New H1 Application

[Bob_86]

Hello Experts,

 

My H1 (transfer) was rejected on 6/19/15 and that same employer is filing a new H1 (sometime next week with internal/in-house project). No MTR(motion) is being done.
1. How good is it to apply H1 with same employer and Internal project? what are odds that VISA would be approved if I have to leave the country and get VISA stamped. 
2. What are the chances that USCIS would give I94? if they give I94 along with approval I797, do I still need to leave the country and get VISA stamped?
3. If USCIS doesn't give I94, what would be the VISA questions that VISA consulate officer might ask?
4. Would they ask about the 1-2 months of stay in the US and how that can be answered/justified?
5. Staying out-of-status in the US and without working in the US, are these any concerns in VISA interview?

 

Appreciate your help in this.

 

Thanks,

[jairichi]

1. In-house project or internal project normally means no project available currently and being on bench. Reason for rejection?

2. Almost 100% chances of not receiving I94 along with I797 if approved.

3. Anything.

4. Truth.

5. Yes.

[rahul412]

Currently you are out of status, no you can't get new I94.

BTW what is this internal project?Does it really exists?

[pontevecchio]

You should get expert help and discuss the matter with a Lawyer.

[victor_26]

1. What was  the reason for the initial denial and how is being justified during reaplication? This should help to answer this question. As long as the internal project is legitimate and your employer can provide evidence, ideally you shouldnt have any problem.

 

2. If your current petition before transfer has a unexpired I-94 you should get a new one once the transfer is approved for the duration the new H1B petition (transfer) is being requested. You neednot leave country incase you have the I-94 for stamping.

 

3. Will vary based on the facts of your case and its presentation on the details.

 

4. What was the reason for the gap? As long as that is not a period for which you were neither on unpaid leave or any other approved unpaid time-off you might be having an issue here. Present the facts and consult your company attorney on this one to get it presented in a right manner.

 

5. Yes and Yes. You are technically out-of-status if not being paid while on H1B and your employer will also get into trouble. Please report the DOL incase your employer has not paid you during bench time and is applying some shady practices.

[durga1021]

Hi, i am in similar situation Please Help!!!

 

I filed my H1B extension on C2C on April 21, 2015 by my employer.

My I94 expired on April 22, 2015

I got RFE for client letter and we submitted client letter, but client has policy to mention 

 

only the prime vendor, it will not mention about actual employer.

 

On July 10, USCIS denied my H1B extension giving reason, they can not establish employee -

 

employer relation.

 

The project we filed petition was ended unexpectedly,

Now i got another project with same vendor and same client but its Vendor manageable project.

 

when spoke to people they suggested below scenario,

 

Appeal the denial by Motion To Reopen (MTR)

And file another H1B as extension with new project in hand

 

Once filed, people saying I can work while under new H1B under process

 

Now the question is: is it legal to work or not while its in process.

 

Please help me what would my option. I appreciate your reply

[jairichi]

Hi, i am in similar situation Please Help!!!

I filed my H1B extension on C2C on April 21, 2015 by my employer.

My I94 expired on April 22, 2015

I got RFE for client letter and we submitted client letter, but client has policy to mention

only the prime vendor, it will not mention about actual employer.

On July 10, USCIS denied my H1B extension giving reason, they can not establish employee -

employer relation.

The project we filed petition was ended unexpectedly,

Now i got another project with same vendor and same client but its Vendor manageable project.

when spoke to people they suggested below scenario,

Appeal the denial by Motion To Reopen (MTR)

And file another H1B as extension with new project in hand

Once filed, people saying I can work while under new H1B under process

Now the question is: is it legal to work or not while its in process.

Please help me what would my option. I appreciate your reply

A MTR does not allow you to stay in U.S. You are accumulating illegal stay. Exit US immediately. Also, your new H1B petition will be denied due to same reason given for first denial.

[victor_26]

 

Hi, i am in similar situation Please Help!!!

 

I filed my H1B extension on C2C on April 21, 2015 by my employer.

My I94 expired on April 22, 2015

I got RFE for client letter and we submitted client letter, but client has policy to mention 

 

only the prime vendor, it will not mention about actual employer.

 

On July 10, USCIS denied my H1B extension giving reason, they can not establish employee -

 

employer relation.

 

The project we filed petition was ended unexpectedly,

Now i got another project with same vendor and same client but its Vendor manageable project.

 

when spoke to people they suggested below scenario,

 

Appeal the denial by Motion To Reopen (MTR)

And file another H1B as extension with new project in hand

 

Once filed, people saying I can work while under new H1B under process

 

Now the question is: is it legal to work or not while its in process.

 

Please help me what would my option. I appreciate your reply

 

 

Please discuss with your attorneys and take their advice. Looks like they already are guiding you through the process and next steps. Nevertheless you need to make sure how you are establishing the Employer-Employee relationship event this time, given the fact that your earlier petition was denied on those grounds. You cannot have a vendor manage your project technically, you will need your employer to manage your work and conduct reviews. 

 

 

Regarding your question - Yes it is legal to work as long as its in process and has not past 240 days. Go for premium if its feasible to help your situation.

[JoeF]

An MTR does not give you any right to work.

[rahul412]

 

Now the question is: is it legal to work or not while its in process.

Yes its legal, but since you are currently out of status you might not get new I94. And forget about MTR, that won't help.

[jairichi]

Regarding your question - Yes it is legal to work as long as its in process and has not past 240 days. Go for premium if its feasible to help your situation.

No, it is not legal for OP to work nor stay in US. H1B transfer petition was denied on 6/19/15. It is a month plus and not even a new H1B petition was filed. Technically OP is accumulating illegal stay in US.

[JoeF]

Yes its legal, but since you are currently out of status you might not get new I94. And forget about MTR, that won't help.

No, the OP can not work. His I-94 expired, and the H1 transfer was denied.

[Bob_86]

Thank you each and everyone, appreciate your help with this. 

 

Denied reason was "Employer-Employee relation cannot be established". 

 

Yes there is actual in-house project and there are employees working for real at the location. And my employer will provide documents to show that there is work in-house. my pay roll was stopped on the date of denial. And after that there was no pay roll run.

[rahul412]

Thank you each and everyone, appreciate your help with this. 

 

Denied reason was "Employer-Employee relation cannot be established". 

 

Yes there is actual in-house project and there are employees working for real at the location. And my employer will provide documents to show that there is work in-house. my pay roll was stopped on the date of denial. And after that there was no pay roll run.

If your employer already had internal projects then why did he placed you at client location??

[jairichi]

Thank you each and everyone, appreciate your help with this.

Denied reason was "Employer-Employee relation cannot be established".

Yes there is actual in-house project and there are employees working for real at the location. And my employer will provide documents to show that there is work in-house. my pay roll was stopped on the date of denial. And after that there was no pay roll run.

Employer can file based on documents. You are currently in illegal status in U.S. You can work only after H1B approval i.e. If I 797 comes with I 94.