H1B Transfer/Extension - RFE

[vinod_help]

I am currently in USA on H1B on Company A and it is valid till 30-SEP-2015. Two weeks back, another company B applied for H1B transfer/extension under premium processing requesting for another 3 years validity. Now I got RFE(Request For Evidence) requesting more documentation from Company B/client letters. It is mentioned in RFE that employer needs to respond to the RFE by 17-NOV-2015.

Also, my spouse came to USA on H4 and its validity is till 30-SEP-2015. I am currently working on filing premium processing for COS (Change of Status) as my spouse 2015-H1B quota petition got approved till Sep-2017.

Questions
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1. Is my legal presence in USA under H1B is VALID till 17-NOV-2015 (RFE response date) even my H1B expires 30-SEP-2015?

2. If answer to above question is NO, then what I need to do if I did not get my H1B transfer/extension approved by 30-SEP-2015?

3. If my spouse COS(H4 to H1B) is not approved by 30-SEP-2015, then what are the options for her legal presence? As my H1B-RFE response date is 17-Nov-2015, whether my spouse H4 also valid till that date?


Thanks,
Vinod.

[vinod_help]

Members,

Can some one clarify/suggest on below questions?

Thanks,
Vinod.

[shervin143]

Did your current employer file an extension. Have you already started working for the new employer even before the transfer got approved (using just the receipt notice)?

[vinod_help]

Did your current employer file an extension. Have you already started working for the new employer even before the transfer got approved (using just the receipt notice)?

I have not started working with the new employer(Company B) yet as petition status is RFE. I am with Company A only as its validity is there till 30-SEP-2015.

Thanks,
Vinod.

[shervin143]

I have not started working with the new employer(Company B) yet as petition status is RFE. I am with Company A only as its validity is there till 30-SEP-2017.

Thanks,
Vinod.

1. Is my legal presence in USA under H1B is VALID till 17-NOV-2015 (RFE response date) even my H1B expires 30-SEP-2015?
>>> Nope. If you are currently with employer A, then your legal presence is valid only till the current employer's petition / I-94 expiry date. You cannot stay and work for employer A post 30th Sept 2015 if an extension is not filed before that date. If the current employer is not willing to file the extension, then you may switch to employer B and begin working post Sept 30th based on the receipt notice. If the transfer gets denied, then the time that you spent in U.S post your I-94 expiry date will be considered to be illegal stay and you should leave immediately.

2. If answer to above question is NO, then what I need to do if I did not get my H1B transfer/extension approved by 30-SEP-2015?
>>> If employer A already filed your extension, then you can stay and work for that employer until a decision is made on your extension petition. If employer A did not file the extension, then switch to employer B and work until a decision is made on their petition. If extension/transfer gets denied, then you need to leave the country. A COS or a transfer is not possible when your I-94 as already expired.

3. If my spouse COS(H4 to H1B) is not approved by 30-SEP-2015, then what are the options for her legal presence? As my H1B-RFE response date is 17-Nov-2015, whether my spouse H4 also valid till that date?
>>> No. Your wife's H4 will be valid only till her current I-94 expiry date. You can file the COS from H4 to H1B in premium to get the response within 15 days.

[vinod_help]

1. Is my legal presence in USA under H1B is VALID till 17-NOV-2015 (RFE response date) even my H1B expires 30-SEP-2015?
>>> Nope. If you are currently with employer A, then your legal presence is valid only till the current employer's petition / I-94 expiry date. You cannot stay and work for employer A post 30th Sept 2015 if an extension is not filed before that date. If the current employer is not willing to file the extension, then you may switch to employer B and begin working post Sept 30th based on the receipt notice. If the transfer gets denied, then the time that you spent in U.S post your I-94 expiry date will be considered to be illegal stay and you should leave immediately.

Thanks Shervin143 for your inputs.

sure, I will switch to employer B after 30-SEP-2015 based on receipt notice(current status- RFE) filed by employer B. Can a new employer C file H1-transfer(before my I-94 expiry date - As I understand from below answers that it can't be filed after I-94 expiration) while employer B's transfer is in process? I don't want to be in a position where my employer B's petition is denied and leave the country immediately.

Thanks,
Vinod.

[shervin143]

Yes. Another employer can file a transfer before your current I-94 expires. But you won't be able to switch between B and C without filing a transfer since both your transfer is filed based on Company A's petition.

Thanks Shervin143 for your inputs.

sure, I will switch to employer B after 30-SEP-2015 based on receipt notice(current status- RFE) filed by employer B. Can a new employer C file H1-transfer(before my I-94 expiry date - As I understand from below answers that it can't be filed after I-94 expiration) while employer B's transfer is in process? I don't want to be in a position where my employer B's petition is denied and leave the country immediately.

Thanks,
Vinod.

[vinod_help]

3. If my spouse COS(H4 to H1B) is not approved by 30-SEP-2015, then what are the options for her legal presence? As my H1B-RFE response date is 17-Nov-2015, whether my spouse H4 also valid till that date?
>>> No. Your wife's H4 will be valid only till her current I-94 expiry date. You can file the COS from H4 to H1B in premium to get the response within 15 days.

I filed COS premium processing for my spouse's H4 to H1B processing.

If COS(H4 to H1B) gets RFE, then whether my spouse has valid immigration status after 30-SEP-2015? Whether RFE receipt status is considered as a valid document for status?

Thanks,
Vinod.

[shervin143]

Yes, she is allowed to stay when the COS is pending as long as the COS is filed before her I-94 expiry date (which applies in your case). But if the COS ultimately fails, then the time spent in U.S post the I-94 expiry date will be considered to be illegal stay and she will have to leave the country immediately provided the previous I-94 has already expired.

I filed COS premium processing for my spouse's H4 to H1B processing.

If COS(H4 to H1B) gets RFE, then whether my spouse has valid immigration status after 30-SEP-2015? Whether RFE receipt status is considered as a valid document for status?

Thanks,
Vinod.

[vinod_help]

Thanks for your help!

Applied in premium processing for H1B - Transfer/extension and my spouse's COS (H4 to H1B) and both got approved.