H1B extension with 2 RFE. Next steps


My H1B extension with 2 RFE’s pending, I140 approved

I am in a very critical stage in the H1B extension process. This is my first extension done after my
first 3 year visa expiring in Aug 17 .

  1. Applied for I140 in Feb 17 and got the approved I140 in Sep 17 (now the I140 has been approved > 6 months).

  2. I have applied H1 extension in May 17 with i94 expiring in Sep 17.

  3. Got my first RFE in Nov 17, responded RFE in Dec 17.

  4. After that I changed the client but not the employer and filed an amendment + extension with a new client (EVC model) in Feb 18 and also filed it in Premium processing.

  5. Received a RFE for the second time (for the one applied in regular processing) asking to explain employer - employee relationship, specialty occupation details and end client letter.

The client is not ready to provide any sort of information in this matter.

What are my options?

Can u please let me know which steps mentioned below is feasible and works best to retain my legal stay in US?

  1. Respond the RFE with the vendor letter, federal taxes filed, End client emails, time-sheets, Organisation chart and not submitting end client letter.

  2. Withdraw my H1 with RFE and respond with the applied H1 premium with the above details or submitting change of project document for the RFE and wait for the decision.

  3. Applying for a H1 transfer before the 20 days period of my 240 days left. (which in my case need to find an employer who is ready to take my case and initiate a H1 transfer).

  4. If i go out of US after the 240 day period and got denial notice can i come back with a H1 sponsor (either my current employer or a new employer) back to US without the lottery?

Hi @aspire

As per my understanding, this is your case summary:

H1B Extension / Amendment i94 Expiry RFE RFE Response RFE 2
1. May 17 (Normal) Sep 17 Nov 17 Dec 17 Mar 18
2. Feb 18 (Premium) Sep 17

My follow up question:
What happened to Feb 18 Premium processing H1B amendment? What is the result?
Its already April 2018 and you should have got result on this application.

Answers to your questions:

1. Respond to RFE

If you have all the required documents that are requested in RFE by USCIS, you should definitely respond.
If you do not include all the docs, the chances of approval are extremely low.

2. Withdraw H1B petition with RFE

You have not mentioned about the result of your H1b premium application. Has it been approved or what?
This question is not clear to me.

3. Apply for H1B transfer

You can certainly apply for H1B transfer.

4. H1B without lottery

Yes, you can come back without lottery since you still have H1B time left (out of total 6 years) in your cap-subject application.
Also, you have your I140 approved and hence you can re-apply for H1B even from outside US without the lottery. If approved, you can come back to US.

Thank you for the quick response.
Really appreciate it.

Feb 18 Premium Processing: Received RFE

They have mentioned in the RFE that the instant petition cannot be processed until they receive a response for the RFE issued (2nd RFE received with regular processing) and a final action is made.

Respond to RFE

The reasons for RFE was End client letter and specialty occupation with duration.
The end client is very stubborn in not supporting in anyway. The intermediate vendor has given strong letter with all the details with which we applied the Premium.

H1B transfer

Contacted few and they say this is very complicated and hesitate.
I am still trying to find an employer to transfer.
But how are the chances of rejection if i transfer as i already have 2 RFE pending. Even after we respond to both RFE.

Hi @aspire

H1B Extension / Amendment i94 Expiry RFE RFE Response RFE 2
1. May 17 (Normal) Sep 17 Nov 17 Dec 17 Mar 18
2. Feb 18 (Premium) Sep 17 Apr 18

I expected your Feb 18 petition to land in RFE as the old one (and a bridge between your old and new status after i94 expiry) is still pending.

Now, you are stuck in a case very similar to this one:

In your case, the new Feb 18 petition has not been approved yet but is in RFE. For the example case, it was moved back to RFE as the old petition landed in RFE.

Responding to first H1B extension RFE

I am not positive about getting a favorable decision if you do not submit the evidence (or documents) as requested by USCIS.
They will most probably deny your application once you submit your half baked response.

The chances of your end client providing a letter (and other documents) when you are currently NOT working for them are also negligible.
You can try and it is entirely your choice on what you want to do.

My suggestion would be to withdraw the May17 H1B petition and release the deadlock.

Withdraw May 17 H1B RFE and break deadlock

You have the option of withdrawing your May 17 H1B extension at this time.
This will free up the deadlock and USCIS can take a decision on your Feb 18 H1B extension.

But, note that if you withdraw May17 H1B, your bridge from May17 H1B to current premium Feb18 H1B application is BROKEN.

If Feb18 application is finally approved, it will be approved for consular processing meaning you will have to go out of US and get your H1B visa stamped in US embassy.
USCIS will NOT send new i94 attached to the approval.

H1B Transfer

The same is true with H1B transfer as well. If approved, it will approved with consular processing.

Hi Anil,

Can you please explain the consequence of this?

1 . But, note that if you withdraw May17 H1B, your bridge from May17 H1B to current premium Feb18 H1B application is BROKEN.

2 . when current employer withdraws the May 17 RFE and after Premium RFE is reponded meanwhile i have initiated a H1 transfer preferably full time - how are my chances of approval?

You need to understand that each H1B application is separate and USCIS decides it’s fate based on the documents submitted for that specific application.

It does not matter how many RFE you have received on other applications.

If you have filed for H1B transfer now, it cannot be approved unless all previous H1B applications have received their result. This is called bridging.

In your case, your H1B transfer will also be stuck if your May17 and Feb18 applications are not withdrawn or reach a result (after RFE).

Thank you Anil for your detailed explanation.

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