Shervin/Kabkaba-Please help---RFE for H1B processing with TVU background

[rajireddy]

Hello Shervin/Kabkaba/other friends,

I have done my Masters from a reputed University and was on OPT till Oct 2009 and in Nov 2009 i got an I20 from TVU for Spring 2010 (Jan to Apr of 2010). I have joined TVU and have done the Spring Semester for which i have official transcript and then took a summer break and joined for Fall. During this Time i applied for H1B and got my H1B approved, ( i have been working on CPT during my complete TVU study) so i discontinued my fall semester starting Oct 2010. Everything is fine till here. But due to my Qwest for a FT job, i have applied for H1B transfer recently in 2011 with premium processing (as i got a FT job with a very reputed direct client) and now the CIS have issued an RFE for the transfer H1B that my previous H1B was approved in error doubting that i may not have maintained status during my previous approval. They asked me to send the documents proving employer sponsoring CPT has a corporate agreement with TVU, my paystubs during the CPT, description of duties performed during CPT, my official transcripts from TVU, grade reports from TVU, proof of tution fees, receipt of books and supplies, my Student ID, evidence of me living in CA which i wasn't as TVU has virtual classrooms. i nearly have 80% of documentation asked and can submit.

But below are questions which i want to get clarified--

1. What are the chances of getting approval with I94? I know it depends a lot on the documentation but i heard from one of my friend that she did get approval for same RFE but without I-94

2. If CIS denies my H1B transfer, will they also revoke my previous H1B with my previous employer as CIS said that they have approved the previous H1B in error (as i have 2 more yrs of H1B left with my previous employer and my previous employer have no idea about new H1B transfer).

3. I have got an opportunity with another big client as a FT, so can i apply with third company for H1B transfer in normal processing before my two of my H1B's (one is the first H1B and the other is the H1B transfer for which i got the RFE) gets denied so i will be in status even after those 2 H1B's gets denied.

4. In the above case, will the normal processing unit of CIS have the data in my file regarding my H1B transfer denial and on what grounds? Are there any chances of approval for the 2nd H1B transfer?

I really appreciate your time in reading this and thanks in advance for your answers.

Shervin/Kabkaba--your thoughts on this??? Thanks again

[shervin143]

1. What are the chances of getting approval with I94? I know it depends a lot on the documentation but i heard from one of my friend that she did get approval for same RFE but without I-94
>>> It is very hard to predict. But if you have enough documents to prpove that you did maintain your CPT, then the chances are high. If not, the H1B might get approved for consular process.

2. If CIS denies my H1B transfer, will they also revoke my previous H1B with my previous employer as CIS said that they have approved the previous H1B in error (as i have 2 more yrs of H1B left with my previous employer and my previous employer have no idea about new H1B transfer).
>>> Possible.

3. I have got an opportunity with another big client as a FT, so can i apply with third company for H1B transfer in normal processing before my two of my H1B's (one is the first H1B and the other is the H1B transfer for which i got the RFE) gets denied so i will be in status even after those 2 H1B's gets denied.
>>> You can do that. But if the H1B doesn't get approved with a new I-94, then any time spend in U.S after the revoke of the existing petition (if they do that) will be consisdred as illegal stay.

4. In the above case, will the normal processing unit of CIS have the data in my file regarding my H1B transfer denial and on what grounds? Are there any chances of approval for the 2nd H1B transfer?
>>> Ofcourse they will have all your data. They would know how many petitions are pending at any given time for an applicant and status of them.

[rajireddy]

Shervin,

Thank You soo much for your reply. It was helpful. Please post the results of any similar case if you come accross. Thanks again

[kabkaba]

Consider this serious and approach an experienced attorney of your own.

[rajireddy]

shervin/Kabkaba,

Is it worth withdrawing my current H1B transfer Application and start working for my previous employer. My question is:

1. if i withdraw the transfer petition, will USCIS cancel my previously approved H1B application?

2. What if USCIS cancels my previous H1B? how many days am i permitted to stay in US? please confirm that i cannot even apply for another transfer to another company as i would not have any status that time?or is it possible to apply quickly to a new company for new H1B and get the reciept number so that i can be in status

Thanks in Advance

[kabkaba]

If you have already left your previous employer and if the new employer withdraws their H1 petition, you will be left out of status. Since this issue has been raised once, it is highly likely that it will be raised again no matter which employer files the petition. (Extensions, transfers everything). It may not affect a consular processing petition (without I-94), but to use that, you will have to travel outside, obtain an H1 Visa and return. Your TVU history is going to bite you, consulting a really good, experienced immigration attorney is your best bet.

[rajireddy]

Kabkaba,

Thank You for your quick reply. Actually, i haven't left my previous employer yet and he has no idea about the transfer part. Its been just a month that this transfer process was initiated in premium processing. My previous employer is still goo with me. Thanks

[rajireddy]

So,

Can i withdraw this transfer petition now and as before start working for my previous employer (i do have I94 with my previous employer)??

What are the chances that if i withdraw the transfer petition, USCIS will cancel my previous petition as they said that (RFE when applied for transfer) it was approved in error and asked me to prove that i maintained status during my previous H1B approval?? Please let em know on this so that i can act accordingly.

Again, i thank each of you for your tremendous support. Thanks

[kabkaba]

If the new employer withdraws their petition or does not respond to the RFE, generally your current employer's petition should not be affected. I have not heard of that happening. But, it is not impossible. USCIS does keep changing their procedures. Consult a really good attorney of your own. (Not your employer's attorney).

[rajireddy]

Thanks a ton. I am consulting an attorney tomorrow. Hopefully i find some resolution on this. Thanks

[rajireddy]

One final Question- I nearly have some 4 paycheques (one spot bonus cheque and 3 payroll cheques) with the current employer with whom i am working and which applied my H1B transfer. So if i move back to my previous employer, how should i handle these payroll and W2 from the present company which i am working. Is it considered as Illegal??

My previous employer agreed to run payroll for the one to two months which i didnt work for him. Thanks

[kabkaba]

You have not left your previous employer and still getting paid from new employer? Are you working for both?

[rajireddy]

Iam only working for new employer based on the transfer initiated (Receipt number for H1B transfer). So, as my previous employer didnt revoke my H1B yet and if i go back to him and work for him after withdrawing the transfer, then how shall i handle the paystubs i got from the employer who initiated my H1B in the future. Say, if i go to a H1B stamping in future, how should i answer the VO about the paystubs and w2 of the employer who initiated my H1B but had withdrawn later? Thanks

[kabkaba]

Since you are legally allowed to work on receipt, you can answer truthfully. Again, do consult an experienced lawyer. This is serious matter, don't depend on forums for advice.