Can we apply H1 transfer after existing H1 extension is denied?

USA
1

We have applied for H1 extension with current employer A in premium processing.
I got RFE and we responded back to RFE last week. We are currently waiting on RFE response from USCIS.
My existing I-94 validity till : Sep 11,2019.

My question is : If H1 extension is denied with current employer A, can I apply for H1 transfer with new employer B by staying in US?

2

Hi @kns

You can apply for H1B transfer after extension denial if your i94 is still valid.

If i94 expires, then you can file transfer but cannot stay in US. You should go outside and wait for your transfer approval.

3

Thanks Anil for the clarifcation. Just want understand more about below statement
“If i94 expires, then you can file transfer but cannot stay in US. You should go outside and wait for your transfer approval.”

  1. My current I-94 validity is till Sep 11,2019. You mean to say I can file transfer even my I-94 is expired and leave the country and wait for approval. My question is how many days we can stay in US after I-94 expired in case of H1 extension is denied
  2. I have another question. If my h1 extension is denied by Sep 5th, 2019, and my I-94 is valid till Sep 11th 2019, how many days I can stay in US to find for another opportunity?
4

Hi @kns

I have covered the options in case of H1B extension denial here. You should leave US as soon as your extension is denied as you cannot continue work even if i94 is valid. There is zero day grace period.

Filing an H1B transfer is tricky and there are various scenarios that i have covered here.

5

Thanks Anil for sharing the details.

Today attorney shared about my H1 extension status. I got NOID and they gave 30 days the time till Sep 30th,2019 to respond that.

They are asking about specialty occupation. They are not clear on job duties which I perform are come under specialty occupation.

could you please let me what the options I have

  1. Can I apply H1 transfer with new employer after my current I-94 expiration date Sep 11th, 2019 by staying in US , as I got the time to respond to existing H1 NOID till Sep 30th 2019 or I can apply H1 transfer only on or before my current I-94 expiration date Sep 11th 2019.

  2. Also can you please any details how to respond on specialty occupation in a better way?

6

Hi @kns

Here is a complete set of documents that you should send to prove specialty occupation.

You can file H1B transfer anytime until the NOID is finally approved.

My suggestion is file transfer before your i94 expires to avoid the bridge scenario.

7

Thanks Anil for your prompt reply.

I will try to apply H1 transfer with new employer before i94 expiry, not sure on that as I have less time to do that.

Regarding Bridge scenario, I have read one of your response

Can I file H1B transfer after i94 expiry?
You CAN file H1B transfer after i94 expiry and start working for new employer too.

Your pending H1B extension from current employer will become a bridge petition and may affect the result of H1B transfer

  1. Does it means my pending extension NOID result with current employer may affect the H1 transfer result ? I mean if NOID is denied, H1 transfer with new employer also will be denied ?
  2. If I apply H1 transfer with new employer after i94 expiry in premium,
    a. Let say if if is approved before my pending extension H1 NOID date Sep 30th.
    do I need to go back to India for stamping ?
    b. What if H1 tranfer result does not come before my my pending extension H1 NOID
    date Sep 30th
    I really appreicate your time giving your inputs on my situation
8

Hi @kns

The bridge petition affects the result of the next petition in the queue.

To maintain continuity of bridge, each application should be filed before i94 expires.

If the extention which is a bridge, is denied, the bridge breaks and hence, you need to go out of US and re-enter to start fresh bridge.

NOID is a serious thing and is different than normal H1B extention denial.

If you file transfer after i94 expiry, USCIS may approve the transfer with consular processing which means they will not issue a new i94 with approval.

9

Ok Anil.
As you said “The bridge petition affects the result the next petition in the queue”.

Let say if H1 transfer which I will be applied after my i94 expiration is approved before my existing H1 NOID date Sep 30th 2019, what happens to NOID ?

Based on my situtation, what would be best option to do ? Please consider that I dont have suifficent time to apply H1 transfer before my i94 expiration date, I can apply for transfer after my i94 expiration date Sep 11 2019.

10

Hi @kns

The chances of transfer approval before the NOID decision are very low.

In these kind of cases where you file transfer after i94 expiry, USCIS sends and RFE to wait for extention result before they can approve transfer.

Unfortunately, the time is not on your side. So, the best option to reply to NOID and try to get it approved.

11

Hi Anil.
As you suggested earlier “My suggestion is file transfer before your i94 expires to avoid the bridge scenario” in case if I have option for H1 transfer.

My question here is since I have less time, is that fine to apply only LCA before I-94 expiration date and remaining process later or we need to submit all the forms including LCA,I-129 etc before i94 expiration date itself ?

12

Hi @kns

Filing only LCA is not enough. Your H1B application should reach USCIS and they should be able to generate a receipt number before i94 expiry.

13

Hi Anil,
As we discussed in this thread about my situtation

For my current H1 extension employer A received RFE, then after NOID. I have time to respond to NOID till sep 30th.
I-94 is already expired.We are working to give strong response with all proper documentation to NOID.

Now I have got an opportunity with another employer B .

As you mentioned earlier chances H1 transfer approval are very low, even they can put in RFE and they wait till my current H1 extension result. You also said even if they approve , it will be in consular processing.

Let say if H1 transfer is intiated and got the reciept from employer B and later if H1 extension with my current employer A is denied
Can I stay in US and start working for the company B ?

Please suggest me the options I have to stay back in US without leaving the country

14

Hi @kns

You can stay in US as long as your transfer result is pending.

The NOID is serious. If the NOID has been issued for first H1B lottery, all your subsequent H1Bs will be denied too. This happens as USCIS will not count you towards the H1B cap if they issue NOID.

Don’t take NOID lightly. RFE and NOID are two different things.

15

Thanks Anil for the reply. We are trying to give strong response by giving all the required documentation for NOID. Noid is issued not for my H1b lottery. After that I moved to different ccompany and now we applied extentsion .
I wanted to stay with my current employer A only. Hoping to get this NOID approved.

I am thinking about the options to stay in US in case if NOID is rejected. Due to that I am thinking about the getting the H1 transfer reciept in hand, before NOID decision if that is a good idea.

16

HI Anil,
We are working on NOID response and next week we will submit the documentation to USCIS(NOID due is Sep30 ).

Please suggest me the option to stay in US in case of NOID is denied.
Now I have an offer with another employer B and they are ready to file H1 trnasfer.
What would be better time to initiate the transfer to have another option in my hand.

17

Hi @kns

I have already answered your questions earlier.

18

Hi Anil,
I went through all your suggestions. Thanks for your time and really appreciate that.

I understood that I need to focus on NOID approval. We gave strong response now and waiting for the decision. Probably I will come to know next week about the result.

Please suggest me on this question . I am planning to apply H1 transfer based on extension result to avoid bridge. In case if my H1 extension is denied, Can I apply for H1 transfer with another employer in Us and after that leave the country within 10 days and wait for H1 transfer result?

19

You can apply H1B transfer and come back to US as and when it has been approved.

20

Thanks Anil for your reply. I will wait for NOID result and then will take the decision

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