I have heard that H1B application can effectively be moved back to RFE (request for comment) even after it has been approved. Is it true?
Yes, it is possible.
H1B approved application moved back to RFE - Real Life Case
1. H1B extension pending, Filed before i94 expiry
Person’s H1B extension application was filed in normal processing in March. I-94 expires in July.
2. Filed H1B transfer after i94 expiry, H1B extension still pending
His i94 expired in July and then he filed for H1B transfer or change-of-employer application (in premium processing) in August same year, to move to new job.
At this time, his H1B extension result was still pending.
3. H1B transfer Approved, H1B extension still pending
H1B transfer application was approved within 10 days of filing with earlier H1B extension still pending.
4. H1B extension get RFE!
After H1B transfer’s approval, within 5 days, the H1B extension’s application received a RFE.
5. USCIS moves approved H1B transfer application to RFE too!!
Immediately after the RFE on H1B extension application, the APPROVED H1B transfer application was also moved back to RFE status. This is a real situation.
6. H1B trasnfer moved to RFE due to filing after i94 expired - No Bridge
When Attorney contacted USCIS, they advised that they cannot take a decision on H1B transfer application unless the H1B extension’s RFE is responded to by old company.
Both applications were in RFE status at this time waiting. This is because the bridge between H1B extension and H1B transfer was broken when i94 expired.
After i94 expires, Unless H1B extension is approved, the H1B transfer cannot be approved either to maintain continuity of STATUS. This is called H1B bridging.
The second one waiting for the first one to be decided first.
USCIS H1B transfer RFE decision analysis:
USCIS considered the person ‘out of status’ in this case as his i94 had expired before filing the H1B transfer application.
This attorney considered the USCIS decision to be a mistake i.e. moving the H1B transfer application to RFE since person had filed an H1B extension timely and before i94 expiry.
This has allowed him to maintain a legal status while working in USA and hence, his H1B transfer should be ‘approved with Consular processing’ rather than moving to RFE.
Attorney’s immediate action to resolve H1B RFE case
- Attorney immediately challenged the USCIS decision and requested them to review with explanation of the situation:
The H1B change-of-employer petition was filed when person’s status was still valid.
This is because, his H1b extension was filed before i94 expiry. Hence, the person had valid status for 240 days if we start counting from i94 expiry date.
USCIS reviewed the decision and the immigration officer’s supervisor was also contacted by attorney to have a re-look at the petition.
USCIS Supervisor decided that H1B change-of-employer (or transfer application) can be approved with 'Consular processing’ clause.
This means that H1B was indeed approved (ignoring the H1B extension’s RFE here) but the person has to travel outside US and get a new visa stamped by going to US embassy.
Attorney’s suggestions to resolve the H1B approved moved to RFE case
Have person postpone his resignation (with the current company) until there is sufficient time for current company’s attorneys to respond to their H1B extension’s RFE.
This would help get the new i94 and subsequently a decision on H1B transfer.
Send person to Mexico for a new visa stamp (but this may be risky since his status will be considered to have ended, when his prior H petition expired with i94, and these types of issues are sometimes the reason the Embassies/Consulates in Mexico and Canada will not issue visas to third country nationals.
Send person to India (or his own native country), where they can issue him the new H-1B visa stamp, as the issue regarding the expiration date is not an actual reason to deny the new H visa stamp at someone’s home country Embassy/Consulate.
File a motion to re-open and re-consider the decision with the immigration service, based on the error in their decision that again shows they think the previous petition “was” pending so his status had expired – instead of acknowledging that it “is” still pending.
(The time to get a decision on this basis could be months.)
H1B RFE attorney solution that worked
Person resigned from current company as planned.
Person traveled to India (i.e. used option 3 as suggested by attorney) and got his H1B stamped.
Came back to work in USA and got new i94.
Thanks for detailing out the case information. I have also similar kind of situation but not exact same. Need your input on it if you can.
My current status:
- I am in my 8th year (2011 to 2019) of H1-B.
- PERM and I-140 was approved with previous employer A and using same I got H-1B transfer approved from Jan 2016 to Jan 2019 with current Employer B.
- Just after H1-B transfer, employer A revoked I-140.
- Current employer did not initiate PERM processing till Oct 2018 so did not have approved PERM & I-140 by mid Jan 2019.
- Current H1-B expired in mid Jan 2019 and employer filed H1-B in Regular processing before I-94 expiry date based on previous employer PERM (which was filed 365 days before H1-B maxout).
- Now got PERM certified and in process to file I-140 by Employer B.
- Employer B is planning to file another H-1B extension in premium processing through Consular Processing/Notification as soon as I-140 gets approved.
- When approval comes, go to home country and get visa stamping then return to US back. Then employer will withdraw first H1-B application.
- Is there any complication to get second H-1B approval because of first one pending? Is this also called H1 Bridging?
- If second H1-B gets approved and go to home country for visa stamping, will there be any issue due to first one pending? What kind of questions would be expected due to this?
- Also what happens to those days (from I-94 expiry to validity start date of 2nd H1-B extension)? I know I am into 240 days rule right now but if 1st application gets withdrawn then will those days create problem in future?
Any other information/thoughts are welcome. Sorry for writing detailed case information. Let me know if any question or confusion.
H1B bridging comes into picture if you are applying for H1B extension/transfer after your i94 has expired and you have another extension pending with USCIS (which was field before i94 expiry).
Basically a bridge to connect the days between i94 expiry date to the date of filing new H1B extension after expiry.
Yes, in your case, if you apply H1B extension after i94 expiry, the first application will become a bridge application for the second.
No issue with Second H1B approval
There is no issue with second H1B approval before first pending H1B application.
In-fact, your employer has suggested the right way of doing it by filing consular processing.
The problem can arise if you stay in US. If you go out, get stamping for new approval, come back to US and withdraw the old pending petition, everything will fall in place.
i94 days between expiry and 2nd application approval
Till the time you are in US and your first application is pending, you are in ‘Period of Authorized stay’.
Once you get approval for your second application, you will leave US. The time from i94 expiry to the date you leave will still be counted as ‘Period of Authorized stay’.
When you enter US again with new H1B visa, you will get new i94.
Thanks for quick response.
Any question can be asked by Visa officer about 1st pending application?
Leaving country in 1-2 weeks after getting 2nd application approval is fine, right?
Yes, any question can be asked by immigration officer.
Yes, leaving country for stamping after approval is fine till the time you have the pending application still pending!