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  • H1 Transfer after Denial

    Hi,
    I am in tricky situation:
    1. I transferred my H1 from company A to company B and based on receipt I started working for company B.
    2. Got RFE and after responding that got denial from USCIS. At that time I had 9 more days validity of I-94 and company A's H1.[valid till 16th November'11]
    3. Company B filed MTR and it reached USCIS on 16th November '11.
    4. I used valid H1 of company A and filed H1 transfer to company C. We sent overnight fedex on 16th November '11 - on the day when company A's H1 and I-94 was valid.
    5. Got receipt from USCIS for the date 17th November '11 i.e. next day of I-94 expiry. and I started working for company C based on receipt.

    Now my question is considering MTR is filed by company B, decision if still pending and since I've filed H1 transfer on 16th itself, am I good or any problem?

  • #2
    If you haven't started working for Company B, then you are good to transfer the H1B from A to C. But since you have start workingf or Company B based on the receipt notice (which is never advisable), the situation gets messy. It is advisable to upgrade the transfer to company C in premium and get the result within 15 days. If you file it in normal and wait for 2-3 months and if that gets denied, then you will accumulate a lot of illegal stay and that will be a problem.
    Not a legal advice. Use of this information is strictly at your own risk.

    Comment


    • #3
      Originally posted by shervin143 View Post
      If you haven't started working for Company B, then you are good to transfer the H1B from A to C. But since you have start workingf or Company B based on the receipt notice (which is never advisable), the situation gets messy. It is advisable to upgrade the transfer to company C in premium and get the result within 15 days. If you file it in normal and wait for 2-3 months and if that gets denied, then you will accumulate a lot of illegal stay and that will be a problem.

      Hi shervin Thanks for the response, but I have question:
      Why working with company B has made situation messy? how does it make difference?
      The attorney advised to apply for normal processing considering the fact that chances of RFE in premium application is high. And the receipt number gives you authorization of work so even in the worst case transfer is denied then in that case the stay would not be illegal isnt it?

      Comment


      • #4
        When you have already started working for B, then you need to transfer the petition from B to C with employer B's pay slips and their approval notice. This is the main reason why it is never advisable to join a company with just the receipt notice. When you have already start workingf or Company B, how can you tranfer to C using company A's petition with whom you are no longer working and have no pay slips. If USCIS review your documents correctly, they can either reject the transfer or approve the transfer without a new I-94. If that takes about 2-3 months, then by that time you would have accumulated a lot of unauthorized employment / stay and that is why it is advisable to file the transfer in premiuma nd get the result within 15 days instead of waiting for 2-3 months.

        You are allowed to work on the receipt notice. If the transfer gets approved, you are all good. If not, your stay and employment becomes unauthorized. Consult a good immigration attorney if you need more clarification on this.
        Not a legal advice. Use of this information is strictly at your own risk.

        Comment


        • #5
          Originally posted by shervin143 View Post
          When you have already started working for B, then you need to transfer the petition from B to C with employer B's pay slips and their approval notice. This is the main reason why it is never advisable to join a company with just the receipt notice. When you have already start workingf or Company B, how can you tranfer to C using company A's petition with whom you are no longer working and have no pay slips. If USCIS review your documents correctly, they can either reject the transfer or approve the transfer without a new I-94. If that takes about 2-3 months, then by that time you would have accumulated a lot of unauthorized employment / stay and that is why it is advisable to file the transfer in premiuma nd get the result within 15 days instead of waiting for 2-3 months.

          You are allowed to work on the receipt notice. If the transfer gets approved, you are all good. If not, your stay and employment becomes unauthorized. Consult a good immigration attorney if you need more clarification on this.
          Hi shervin Thanks for the response, got your point. Deffinately will consult an attorney but considering the fact that MTR is filed, MTR gives authorized stay isnt it?
          Last edited by uscisharras; 01-06-2012, 01:55 PM.

          Comment


          • #6
            MTR takes about 1 to 1.5 years sometimes to get a response. If the MTR gets cleared, then your stay becomes legal. If it gets denied, then your stay past the I-94 expiry date will become illegal and it can cause a lot of issues. If you stay illegally for more than 180 days, you can get upto 3 year ban. If you stay illegally for more than 365 days, you will get upto 10 year ban from entering U.S.

            Just filing an petition doesn't give you the legal status. You need to have continued I-94 to legally stay in U.S. Once your I-94 expires and ifyou are waiting for the extension / transfer get approved and if that indeed gets approved with a new I-94 filling the CAP from yuor previous I-94 expiry date, then you are all good. If not, you have accumulated illegal stay.


            Originally posted by uscisharras View Post
            Hi shervin Thanks for the response, got your point. Deffinately will consult an attorney but considering the fact that MTR is filed, MTR gives authorized stay isnt it?
            Not a legal advice. Use of this information is strictly at your own risk.

            Comment


            • #7
              Originally posted by shervin143 View Post
              MTR takes about 1 to 1.5 years sometimes to get a response. If the MTR gets cleared, then your stay becomes legal. If it gets denied, then your stay past the I-94 expiry date will become illegal and it can cause a lot of issues. If you stay illegally for more than 180 days, you can get upto 3 year ban. If you stay illegally for more than 365 days, you will get upto 10 year ban from entering U.S.

              Just filing an petition doesn't give you the legal status. You need to have continued I-94 to legally stay in U.S. Once your I-94 expires and ifyou are waiting for the extension / transfer get approved and if that indeed gets approved with a new I-94 filling the CAP from yuor previous I-94 expiry date, then you are all good. If not, you have accumulated illegal stay.
              Thanks a lot shervin for your valuable inputs. I''ve taken appointment with the attorney and will update the inputs once I get. One more doubt regarding illegal stay for 180 days is: the 180 days counter starts post i-94 date or the date when I applied my transfer from company A to B ??because
              1. A->B is denied and is under MTR and
              2. IF A->C is denied again then illegal stay starts from A-B transfer initiation day [the day when i started working for B] or post I-94??

              Comment


              • #8
                Your illegal stay starts post I-94 expiry date. Your out of status period starts when you are not employed in H1B status or employed without authorization from USCIS with a valid I-94 from the previous employer in hand. Illegal stay can lead to an automatic ban. Ban for being out of status will be decided by the VO.

                Originally posted by uscisharras View Post
                Thanks a lot shervin for your valuable inputs. I''ve taken appointment with the attorney and will update the inputs once I get. One more doubt regarding illegal stay for 180 days is: the 180 days counter starts post i-94 date or the date when I applied my transfer from company A to B ??because
                1. A->B is denied and is under MTR and
                2. IF A->C is denied again then illegal stay starts from A-B transfer initiation day [the day when i started working for B] or post I-94??
                Not a legal advice. Use of this information is strictly at your own risk.

                Comment


                • #9
                  Originally posted by shervin143 View Post
                  Your illegal stay starts post I-94 expiry date. Your out of status period starts when you are not employed in H1B status or employed without authorization from USCIS with a valid I-94 from the previous employer in hand. Illegal stay can lead to an automatic ban. Ban for being out of status will be decided by the VO.
                  Thanks for the clarification. So in my case, since MTR is pending my work on receipt of A->B (for the one which H1 is denied ) is not out of status unless MTR is denied am I right?

                  Comment


                  • #10
                    Correct.

                    Originally posted by uscisharras View Post
                    Thanks for the clarification. So in my case, since MTR is pending my work on receipt of A->B (for the one which H1 is denied ) is not out of status unless MTR is denied am I right?
                    Not a legal advice. Use of this information is strictly at your own risk.

                    Comment


                    • #11
                      Re-opening discussion

                      I think this is wonderful patform for discussion and get feedback from senior members. I would really like to hear what happen next for your case.

                      Couple of thinks I am not sure of what senior member:

                      1. If you filed H1 transfer from company A to Company B. You started working on receipt. and if the transfer gets rejected. Why would your status be illegal. You followed all the norms and everything.
                      2. Even if it got denied on the fact that you were out of status for what-so-ever days before filing transfer and now you file MTR and get certain days ( or a year) to get answer. Lets say the answer is again -denied H1 B transfer. Why would you be out of status now ? Did you get any notice ? I really don't think that your status that you were staying in US for what-so-ever timing waiting for decision makes you illegal here. But yes if MTR gets same result as denied. You will get certain days to go out of the country. DO NOT IMAGINE Getting barred or something like that.

                      <Not legal advice, Just based on experience >

                      Thanks and waiting to listen back what happened in such cases.

                      Comment

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