H1B transfer after i94 expiry, H4 COS and unlawful presence

i94

(Amit Parel) #1

Employer A: H1b extension pending

My H1B extension is pending with the USCIS. The case was filled before my I94 expired. Currently received an RFE for specialty occupation. We have till Feb 15th 2019 to respond. Meanwhile my I94 has expired on 11.29.2018.

Employer B: H1B transfer applied after i94 expiry

Applied for H1B transfer on 12.13.2018 after i94 expired. This is under regular processing and will upgrade to premium in Feb 2019 in case it is re-started. This is essentially a bridge application

Plan is to join employer B on receipt.

Question:

  1. Once I resign with employer A they will “withdraw” the pending extension application. If they do that when will my unlawful presence start to accrue? From 11.29.2018 date of i94 expiry or as of the date of withdrawal?

  2. Employer B attorney has advised me to leave the country 120 days after unlawful presence so that it does not trigger a bar. He told me to go wait in India after 120 are accrued so that I don’t trigger a 3 year ban. He is adamant that unlawful presence clock starts from the day Employer A withdraws the extension application and not as of 11.29.2018. IS this correct?

  3. since employer B’s transfer application is essentially a bridge petition wouldn’t the bridge be broken if employer A withdraws the pending extension case? Will that have impact on employer Bs petition?

  4. My wife is on H1B visa with 3 year approval in worst case I want to come back on H4 dependent. Incase I depart after 120 days will it cause any issues while H4 stamping? Lawyer is again saying it will not create any issues as you were lawfully present in US since you had an application pending with the USCIS. Is this correct?

Will appreciate any help


(Anil Gupta) #2

Hi @Amit_Parel

If your employer A withdraws your H1B, then unlawful presence would start from the date of withdrawal and not i94. Your attorney is right.

Yes, it is very important to leave country and not add unlawful presence. It is very dangerous these days as USCIS is getting stricter every day.

Bridge Application affects H1B transfer

Since, this is your bridge application, i strongly advise to NOT join new employer based on receipt.
But, in the end, it is your choice.

The bridge application will affect the outcome in the sense that it will be approved only with consular processing, if approved. This means that you will have to go out of US to get H1B stamp and re-enter.

H4 stamping and entering US is more complicated

You can get H4 stamping and enter US on H4. H4 stamping is not an issue. Your attorney is right on this point too.

But, you won’t be able to work until your H1B transfer is approved and then, you will have to apply for H4 to H1B change of status.
You won’t be able to join new employer unless this COS is approved (which itself can take about a year with current H1B processing times) !!!

Related:


(Amit Parel) #3

Anil - Thanks for the prompt response. Due to the nature of the employment with employer B “EC” model the client is not going to wait till H1B transfer is approved so I will have to join based on the receipt. The main thing I am banking on is premium processing reinstatement in Feb once it is reinstated I will get an answer sooner.


(Anil Gupta) #4

Great. All the best. Let me know if you need more information.


(Amit Parel) #5

Anil as expected I got an RFE in my transfer case. USCIS is now saying that the transfer case will not be adjudicated unless final decision is made in the prior pending case. My lawyer advice me to withdraw the extension case which was filed by my prior employer.

Question for you:

  1. In the RFE USCIS didn’t ask for anything else. Is this a good sign? My view is that they didn’t even look at my case. They must have seen another pending case and sent me this notice. Since this is low hanging fruit for them. Do you think once we respond of this RFE they will start looking and then eventually give another RFE for Employer employee relationship or specialty occupation RFE?

(Anil Gupta) #6

Yes, it is possible that you get second RFE.


(Venkatraman Kameshwar) #7

Hello Amit, Any update on your case?


(Amit Parel) #8

My case was approved today. I just got the status update on the uscis website. will wait for formal documents from the lawyer. Good luck to you i am sure it will all work out.


(Anil Gupta) #9

Congrats @Amit_Parel


(Venkatraman Kameshwar) #10

Hello @Anil_Gupta,
I have the exact same situation as @Amit_Parel.
Employer A:
My H1B extension is pending with the USCIS. The case was filled before my I94 expired. Currently received an RFE f(not sure of what RFE). my I94 has expired on 08.10.2018.

Employer B:
Applied for H1B transfer on 12.21.2018 after i94 expired. This is essentially a bridge application.

I joined Employer B on receipt notice on Jan 02nd.
There was a USCIS site visit for me at new employer site and I was present as well as my manager and it went well and they didn’t come back for any documents and also I work at EC model and SOW is valid for 5 years.

I upgraded my H1b transfer to premium on Feb 27th(Clock started on 27th) and till now I haven’t heard back anything from USCIS.Not even RFE is given for my transfer and my 240 day expires on April 8th.

I see there are no cases pending from dec unless they have received RFE for Vermont center.

Could you please help me decide my options?

Should I travel back before my 240 days gets over?
Should I stay back without working after my 240 day?
What could be the reason USCIS has not taken up my case yet?


(Anil Gupta) #11

Hi @venkatramank582

You still have 2 days left in your premium processing 15 days time.

You will get result tomorrow or max by Wednesday. Wait for it and then we can think about options.


(Venkatraman Kameshwar) #12

Okay @Anil_Gupta,
Thank you for your quick response.
I will wait for 2 more days and then will ask for your suggestion.


(Venkatraman Kameshwar) #13

Hello @Anil_Gupta , i received RFE on 15th day and they have asked for previous i797 approval copy which i dont have and previous company extension is in RFE.they have also asked for specialty occupation.
Since my period of authorised stay is ending in april 8th i have decided to travel back to india on april5th and respond to rfe from india.
Will there be any problem in responding rfe from india?
Do u think i have any other option but to go back and respond?


(Anil Gupta) #14

I think it is better to leave and then respond to RFE.