H1b Denied from Employer A, Filed transfer with employer B after denial notice received

Hi Anil,

I am running into a situation where my extension was denied from Employer A (Online denial - 12th Sept, 2019 and Hard copy received on 17th Sept, 2019) but my H1b transfer was filed by Employer B (On September 24,2019) which is after receiving hard copy of denial notice from Employer A.

I exited country after 10 days (On 27th September,2019) when hard copy of denial notice was received to my employer. I received RFE on new petition asking additional evidence that how did I maintain valid status at time of filing.

I am providing all the pay stubs, W2 and bank statements in support of my response. Isn’t 10 days considered closure time for all logistics in US.

I tried to leave country as soon as possible. Can I not file transfer when out of status?

I have heard many lawyers say that you can file transfer in consular processing after denial and wait for result outside the country which I am doing in my case.

What are the chances of approval ? Please guide.

Hi @purnesh

You can file H1B transfer with consular processing option after the previous employer extension denial.

Are you sure your employer filed transfer as ‘consular processing’ and not ‘extension of status’?
USCIS will usually send RFE to prove status only in cases where you apply H1B as ‘extension of status’.

Yes, it is filed in consular processing where I gave Chennai consulate as my stamping center. RFE on new petition was issued on 25th September (I was in country) and I exited country on 26th September.

Hi @purnesh

I do not think it is an issue as you left USA within normal time. Just wait for the result.

Any idea, what additional supportive documents I should submit to respond to this kind of rfe? How can I prove my valid status? I am somehow always confused between invalid status and unlawful presence. I believe there is very thin line of difference between these two.

Hi @purnesh

I have explained the differences here:

Thanks Anil. Would you know how can I prove my valid status between denial from Employer A and day of transfer with Employer B.

Hi @purnesh

You cannot prove the valid status if it was not valid. You status was ‘unlawful presence’ after the denial.

You should talk to an attorney to find out what exactly is USCIS asking for and what answer should be given.

Have you seen similar kind of RFE before ? My attorney has just asked for pay stub till the time I was in US. I believe they are trying to prove that candidate was paid until his stay in US. Does USCIS sends list of documents it needs to clear RFE? Tricky !!

Hi @purnesh

Have you seen the RFE letter sent by USCIS? Please ask your employer for the letter as it has all the details.

USCIS sends a very elaborate letter and lists multiple options that you can use to prove what they are asking for. It is better to read that letter first.

Yes I have seen my RFE Letter. My RFE is not descriptive enough and has lot of gray area in terms of evidence to respond with -

**MAINTAIN VALID STATUS AT THE TIME OF FILING **

Evidence submitted shows the previous petition, WACXXXXXXXXXX, was denied on Sept 12,2019. Previous H-1 B was status expired March 31, 2019 and the current pending petition was received September 24,2019.

Submit evidence that shows the beneficiary had been maintaining a valid nonimmigrant status , as a(n) H-1 B, at time of filing this petition.

As you said above I cannot prove my status as valid as my status was ‘unlawful presence’ after denial. I have talked to attorney and they are submitting all my pay stubs, W2 and bank statements from my expiry till the time I was in US.

Hi @purnesh

That’s probably the best way to respond to the RFE at this time. You did the right thing to leave US within reasonable time. So, i don’t think there is anything to worry here.

Thanks Anil for your inputs. Let’s see what happens . I will update you after results.

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