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H1 extension pending approval - Can the employer withdraw it ?

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  • H1 extension pending approval - Can the employer withdraw it ?

    Hi,

    I couldn't find answers to my questions. Appreciate if you can throw some light on the situation -

    I came to US in 2007 on H1B, have be working since then. My current petition expires in Feb 2011 and my employer filed for an extension. Due to certain personal circumstances, we are planning that I move to H4 in March 2011. But depending on the current situations, I doubt that it would be approved by March.

    1. In this case, would my employer have a chance to withdraw the petition already submitted ? or would the employer have to wait till the petition is approved to cancel the H1 ?
    2. What do employers usually do if an employee resigns when petition approval is pending?
    3. Is it safe to resign by the end date of my current petition so as to avoid the renewed petition getting approved (because if my H1 gets approved after H4, then I would automatically move to H1 again)?

    Greatly appreciate your replies!! Thank you!!

  • #2
    Originally posted by gmv123 View Post
    Hi,

    I couldn't find answers to my questions. Appreciate if you can throw some light on the situation -

    I came to US in 2007 on H1B, have be working since then. My current petition expires in Feb 2011 and my employer filed for an extension. Due to certain personal circumstances, we are planning that I move to H4 in March 2011. But depending on the current situations, I doubt that it would be approved by March.

    1. In this case, would my employer have a chance to withdraw the petition already submitted ? or would the employer have to wait till the petition is approved to cancel the H1 ?
    You will have to file I-539 to change your status from H1 to H4. Your employer must also withdraw the petition.

    2. What do employers usually do if an employee resigns when petition approval is pending?

    They should withdraw the petition.

    3. Is it safe to resign by the end date of my current petition so as to avoid the renewed petition getting approved (because if my H1 gets approved after H4, then I would automatically move to H1 again)?

    That is correct. Your status depends on the last action taken by USCIS. That's why both I-539 filing by you and petition withdrawal by your employer must happen.

    Greatly appreciate your replies!! Thank you!!
    Answers above.
    This is my opinion and not legal advice.

    Comment


    • #3
      Thanks for the prompt reply..

      Just a further question -
      - Can a H1 extension and a H4, both be applied on my name at the same time??
      - Would it cause issues with USCIS if they see my application for both H1 and H4 at the same time ?

      Appreciate your replies!

      Thanks!!

      Comment


      • #4
        - Can a H1 extension and a H4, both be applied on my name at the same time??
        >>> Yes. However, search and read about the last action rule. Your status will change as per the last approval that you receive with the I-94. If H4 gets approved last, you cannot work any longer. If H1B gets approved last, then you need to be working as of the effective date. So better make up your mind instead of complicating things.

        - Would it cause issues with USCIS if they see my application for both H1 and H4 at the same time ?
        >>> No. Each application is processed as independent application.
        Last edited by shervin143; 01-27-2011, 01:26 PM.
        Not a legal advice. Use of this information is strictly at your own risk.

        Comment


        • #5
          You will have to maintain whichever status was approved last if you file 2 applications.
          If it is H4 you cannot work and if H1 you must work and get paid.
          This is my opinion and not legal advice.

          Comment


          • #6
            Similar question, Please help !

            I am currently working on OPT.

            My current employer has very recently filed for H-1 and another company approached me with whom I had an interview today. The new company is also willing to sponsor me with H-1. Is it possible that my old company withdraw their application and my new company can do the filing instead ?

            Also in this process, do I need to fill in something or do any formality.

            Thanks for the help in advance !

            Comment


            • #7
              My current employer has very recently filed for H-1 and another company approached me with whom I had an interview today. The new company is also willing to sponsor me with H-1. Is it possible that my old company withdraw their application and my new company can do the filing instead ?
              >>> Multiple employers can file the H1B petition on your behalf at the same time. It is not required for the old company to withdraw their petition so that the new one can file it. If both the petition gets approved, then you can choose which employer to work starting Oct 1st.

              Also in this process, do I need to fill in something or do any formality.
              >>> No. H1B is an employer's petition. So the employer or his attorney will fill everything. You just need to provide the supporting documents that they ask.
              Not a legal advice. Use of this information is strictly at your own risk.

              Comment

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