RFE on H1B Transfer Maintanence of Status


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This is my  wifes Case:


She was offered a fulltime position by company A in 08/13/2012 for Dublin,Ohio Location..Company A has another location in Norcross,Georgia..While filing her H1B transfer, Company A filed a wrong LCA for Norcross Location.. still  her H1B /I-94 was approved till 07/30/2015..


Now Same company B filed for Extension under normal Processing on April 14 2015 at CSC..She got an RFE on 09/29/2015 which requests to prove maintanence of Status..It states her original LCA was filed for Norcross,Georgia Location and all recent pay stubs filed during extension shows State taxes paid to Ohio and city taxes paid to Dublin city..


THe RFE response deadline is til 12/22/2015..


 Attorney says they will file the response for RFE under Consular Processing,so they want her  to leave the country  before they file RFE response which they plan to do by 12/15/2015 under Premium processing..


Here are my questions..


1. Is my Wife really out of status now,shall my wife listen to Attorney and leave country before they file RFE response  on 12/15/2015 or wait until the decision is made by USCIS?


2. Is  Attorney doing right thing by filing the response as Request for Consular Processing where as I am not sure how they will proove with evidence the my wife was working at Norcross,georgia where as She never worked there, from Day1 after she was hired for Dublin Location..


3.Attorney wants to wait until just before the RFE deadline to respond as we recently had a baby on 09/23/2015 and we are yet to receive his US passport and Indian Visa..


4.Attorney is very confident that the petition will be approved for consular processing..Is its denied my wife will be anyways in India and they will file for a new h1B,will she be subjected to cap or her new H1B has no bearing on quota system,what are the chances of approval of new H1B petition?


Can someone help us resolve our queries as we are very very stress full..My Wifes employer is very supportive which is a plus..


Thanks !!

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If an H1B Petition is filed with the LCA and I-129 form stating the job will be performed at Norcross, GA and the work was actually performed in Dublin, OH, then such a person is usually out of status. The violation may be completely due to the employer's actions but overcoming that in a subsequent extension of status is unfortunately a challenge. It requires meeting the extraordinary circumstance standard in the regulation and the law looks to the petitioner, not the beneficiary, to show this.


This entire situation sounds very strange and unfortunate. The fact though that there is an I-94 card with the current petition being extended means that even though out of status, there would not normally be unlawful presence, so leaving the USA and consular processing might actually be the best way to fix this fast.


If she is the beneficiary of an H1B petition, just because she was out of status does and leaves the U.S. to get a visa based on a new approval does not make her subject to the cap again.


It would, though, be a good idea to get an actual second opinion - this Forum posting is not legal advice to rely on, just directions - where an actual attorney is reviewing as much documents as possible, including the last H1B and the pending petition, so your wife can get some solid legal advice on what to do.

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Thanks a lot,I sincerely appreciate your response and time and I am considering a second opinion and would try to scheduile a consultation call with Murthy Attorneys on this as I dont want my wife to suffer for a mistake comitted by her immigration attorneys..


I am very sure that from now on she would  have to answer every stage  whenever we file an H1B transfer or her I 485 adjustment of status, this question why" she was out of status"..Looking forward to a solid legal advice from Muthy Law Firm on this..

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