H1b pending weeks after Premium Processing time is over

My H1b was filed in 2018 and we got a RFE in October in which they requested payslips for a certain period. We provided the same by early november but there was no update. We upgraded to premium on 30 Jan and still there is no update. My attorney does not share the receipts with me but they say that the RFE response and pp upgrade request was received by the USCIS. My attorneys have also raised a SR but they are yet to share the details. I see on the case status page that the service request response was sent.

My questions are -

  1. Does this in any way indicate a possible denial? I am on L1b visa working with a product company (4th year) and the RFE was related to maintenace of status. I have been reading that no update after 15 days pp generally means a denial or another RFE.

My case status is still “RFE was sent…”, I am dounting if they ever recvd our RFE response. If thats the case, can we appeal against a denial (if there is one) for non submission of RFE response?

  1. If it is a denial, what are my other options ? Can I in parallel apply for H4 while working on L1B?

  2. I assume there is no way to get H4 on premium unless it is accompanied by H1 transfer. My wife is on H1 and she is planning to swicth jobs. If she were to file a premium, would it mean that my h4 will also be processed in premium?

  3. Will EAD need to be requested after the h4 is approved ? If so, what is time gap(best-worst case) that I can have between getting H4 and H4 EAD.

  4. If I move to H4 ead and then get H1, will the H1 period be 3 + 3 years or will the previous L1 period be still counted for new H1?

Premium Processing delays - Another RFE?

I strongly feel that your application has received another RFE as premium processing timeline does not go beyond 15 calendar in 99% of cases.

Talk to your employer and see if they have received another RFE or not.

Or your employer has still not sent the first RFE response to USCIS. Once the RFE response is received, the 15 day clock starts again immediately.

L1B denial - Apply for H4

You won’t be able to file L1B to H4 COS application if your L1B has already been denied as you will lose your legal status in US.

If you want to apply, apply before you receive any denials preferably before your i94 expires.

H1B Transfer and H4 COS in premium

H1B cab be filed in premium with H4 and usually USCIS does process both in 15 days.

But, due to a new H4 Biometric requirement starting Mar 22, 2019, H4 will definitely be not processed within premium timeline.

File H4 COS and H4 EAD together

You can apply H4 EAD with H4 COS and H1B transfer concurrently. But, as mentioned earlier, H4 COS will probably take ages to get approved.

H4 status is pre-requisite to get H4 EAD.

The better option would be go out of US and get H4 visa stamped on passport and then re-enter USA.

L1 period is counted for H1

If you have stayed in US without a cool off period of at-least 365 days outside USA, your L1 period will be counted towards H1 6 year quota.

Thanks for the prompt response. We have not received any second rfe as yet but raised a service request so waiting to see the response for that. The hr says they have the fedex slip as a proof that the response of submitted in case the uscis says it never received the response. A few more questions -

  1. Can we appeal against denial in case uscis says they never received the rfe response ? Would that help in any way ?
  2. I am currently in l1 that is valid till March 2020. If I decide to not wait for H1b or get a denial, I will consider moving to h4. Based on what I read, h4 cos can take time even with pp. but if I was to step out of US and then get h4 , how much time can it take in the worst case to get h4 and then Ead? Or do you recommend working on l1b and filing h4 in parallel since I have time till March next year. Ofcourse not sure about the Ead if it will get revoked by then.
  3. If say I start working on h4 Ead for a few months and then move to H1b, will I get H1b for complete 3+3 years since my last status was h4?

Thanks again for your replies

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I have never heard of a case where USCIS denies receiving an application when it was actually delivered. You are just thinking about a hypothetical scenario.

H4 visa

H4 Visa will take as much time it takes to get US embassy interview appointment outside USA.

Filing H4 COS in parallel is your choice. Please note that the day your H4 COS is approved, you are on H4 status that day (or the date that you requested as start date) and would have to stop working immediately the same day unless you have any other work permit.

H1B 6 year quota

As i already told earlier that you have to stay outside USA physically to reset the 6 year quota.

Thanks for the reply. We got a response to the service request saying that the decision was already taken and decision notice was mailed. They do not tell us what the decision was.

PP was rejected since the decision was already taken. My attorneys/company have not received any notice and they are now planning to file I-824 and are also suggesting me to reach out to congressional offices to seek help.

Any suggestions on how to deal with this?

Also, if I were to apply h1b for the coming season via a different employer as a backup in case its a denial , would it in any way impact my current application if it was approved?

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Current application would not be affected if you decide to file a new application in April 2019 H1B season.

I have not heard any such case before where USCIS sent the approval and was not received by attorney.

What is your attorney saying about the cause of the issue?

Thanks. The attorney said they and employer rechecked every mail but could not find any notice. It is wierd though they said that they saw one such case where approval notice was sent but never received and it was only after filing I824 that they got the notice after 2 months of filing.

They have raised a service request again to update the online status. Since the RFE was more on maintenance of status rather than speciality occupation, they are still hopeful that its an approval.
Do you think contacting sentors or local congressman office would help in this case?

Also, in order to aleast get the status, can we file a FOIA request?
https://www.uscis.gov/about-us/freedom-information-and-privacy-act-foia/how-file-foia-privacy-act-request/how-file-a-foiapa-request

Congressman can only send a request on your behalf to USCIS.

The final mail notice will still be sent to same attorney address. You can try if you want.

FOIA will also take at-least 1-2 months to get any result. You can try FOIA too.

My suggestion is to let attorney do what they are doing and you should be fine.

Thanks, it is just that the current processing times on USCIS website for I824 is 4.5-11 months for all centers. So, looking forways to expedite this somehow since I am currently on L1B 4th year and want to move to h1 and start gc processing before I hit the 6 year mark. I am not even sure if my visa is approved, will it be approved for the same period that my L1 is valid for or will they give me an additional 1 year (considering 6 year h1b) ?

I too cannot understand how can the notice not be received. Just curious - Dont they need signatures on delivery ? Also, do they send 2 copies - one to employer and other to attroney or only one to attroney?

Your H1B should have been approved for 3 years.

I have no idea why it has not been delivered to your attorney. Only 1 copy is sent and that is sent to attorney.