Emp A I-94 valid; Emp B H1B Transfer reapplied after denial

Hi Anil, Thank you for the amazing work you do to support the community.

I have couple questions. Following is my case situation.

  • H1B visa and I-94 with Emp A is valid until Sep 2020.
  • Started working for Emp B after filing H1B transfer.
  • Transfer petition with Emp B got denied after RFE response. Stopped working immediately.
  • Within a week after receiving the denial notice, Emp B refilled the transfer petition in regular processing at CSC.
  • Received a RFE on the refilled transfer petition and responded with requested documents in Jul 2019.
  • Currently waiting for a decision. H1B with Emp A is still in an Approved state.

Q1. Was I out-of-status or unauthorized to stay at anytime? If yes, how will it impact my pending H1B petition and I-94?
Q2. Would you recommend upgrading to Premium Processing at this time as the petition is pending for more than 90 days since responding to the RFE?

Thanks again!

Naveen

Hi @xvarq

You are ‘out of status’ if you are not working currently and your H1B payroll is not running.

Your ‘out of status’ stay in US will definitely affect your applications. You should ideally either go back to work with old employer to stay in H1B status or leave US immediately.

The chances are very high that if the transfer is approved now, it will be approved with consular processing anyway.

I strongly suggest to upgrade the transfer application to premium and leave US immediately. Wait for result outside US.

Thank you Anil for reviewing my case and sharing your opinion!

My apologies for not clearly mentioning in my previous comment that I resumed work for the same client after getting receipt for the refiled petition. I should also mention that, I was employed throughout the above outlined period. I also have approved I-140 with both Emp A & Emp B.

With this new information, do you still think that I’m currently out-of-status or was out-of-status at any time? Is the 240 day rule applicable to me in anyway?

Additionally, if my current refiled transfer petition is approved without I-94 (consular processing),

  • How many days do I have to leave the country?
  • Can I go for stamping at Mexico or Canada instead of the country of origin?

I highly appreciate your time and efforts, Thanks again!

Naveen

Hi @xvarq

As per my information, you cannot work for same employer even when you have refiled your transfer application, once it has been denied.

Did you file the new application before denial? If not, then your status was automatically denied on the date of denial. When you filed H1B transfer again, you had no legal status.

You should consult an attorney for second opinion here to make sure you are doing the right thing. I do not recommend it the way you have done it.