Pending H1B amendment with RFE, Project has ended

@ Anil Gupta
I had applied my H1b extension cum amendment in November 2019, and got RFE on my H1b case. Unfortunately due to budget reason my current project ended on Mid of Jan 2020 and I wasn’t reply to my RFE which is due by March 31/2020. At present my current situation is my I9 and H1b both got expired on Jan 31. What is the Best option I have to stay in USA. Please advice?

  1. Can I file my H1b case with the same employer.

  2. Is there a high probability of me going to a consulate process.

  3. My employer is not willing to withdraw the pending petition which has RFE, were my project is ended on Jan 17/2020 , will the new petition with the new project get approved, with the same employer.

Hi @dinesh82

What is your current status? Is your H1B payroll running?

Is your i94 expired?

Do you have any other H1B extension or transfer or amendment pending at this time?

What is your current status? Is your H1B payroll running? - (Dinesh - Yes)

Is your i94 expired? - (Dinesh - Yes on Feb 10/2020, H1b on Jan 31/2020)

Do you have any other H1B extension or transfer or amendment pending at this time? - (Dinesh - Not yet filed. I am looking for a new project and marketing myself but with same employer were I have pending RFE)

Since your i94 has already expired, any new application that you file will become a bridge petition.

The chances are high now that you will have to file new extension using ‘consular processing’ or USCIS will send an RFE on new application to wait for result of your existing pending amendment + extension.

Since, you will not reply to pending amendment + extension, it may just be denied ultimately and then your bridge will be broken.
Once a bridge is broken, you have no option but to go out and get a new H1B visa stamp.

Can I file the Extension cum amendment with the same employer or find a new employer ?

How much time I have to find a project and file the Extension with the same employer ?

What are the chances to get my Visa stamped and come back to USA if I go with the same employer for consulate process.

Thanks a lot for your help and appreciate your time…

As i already said that whatever you file now including amendment or transfer or extension, all will be treated as bridge.

Chances of visa stamping depends on your paperwork and Employer documents. I can’t say what will happen there.

Hi Anil
Need Urgent advice from you please .
I have a pending RFE which is due March 30/2020 and where my project is already ended… Recently I have got a New project to file my New petition but the joining is getting delayed because of Coronavirus and March 30 is very close by.

  1. If my employer does not responds to my RFE by march 30/2020 , how long it takes on USCIS end to deny my petition

  2. If my petition is deny , do I have to leave India immediate ?
    Also taking into consideration recent
    coronavirus Threat, can I Overstay here , and can we explain later to USCIS because of Virus I had overstay as everything was shutdown and flights were getting canceled. In mean time My employer can file a new petition after March 30 and start working

  3. Can he file a New petition now before the RFE due date which is March 30, showing a Joining date of March 16/2020 of the New project and also mention that joining may be delayed due to coronavirus threat, will that is good option and USCIS will consider my Petition, keep in mind the Current Virus situation.

Appreciate if you can Please help and advice…

Hi @dinesh82

I don’t think your plan of Coronavirus as a reason to stay in US will work.

Your i94 has already expired and there are not much options available now.

I can’t say as to how much time will USCIS take to deny your pending application. It depends on USCIS officer.

You will have to leave immediately once USCIS denies your application. Rest is your choice.

Hi Anil, thanks and appreciate your response, Just had a last question if you can please advice

As my client is delaying the joining date, Can my employer send the new petition with New Project to Uscis and include
Mention that joining is delayed due to Coronavirus threat and he can resume the work once the client onboard him after the Coronavirus threat is over, in that case, we can also respond to old RFE case and also file a new petition Parallel, Can you please share your thoughts?

Hi @dinesh82

I don’t understand what Coronavirus has to do with all this.

USCIS only cares about the start date mentioned in H1B application and your current legal status.

As i already told, I don’t think Coronavirus is going to help in this scenario.

Ok, I got its, thanks again.

Hi Anil
Sorry to bother you, I got this advice from my Friend, not sure if this is possible in reality

If I file my adjustment of status and convert to F1, will that allow me to stay in USA and be as student. till everything is back to normal.

Can I again go back to H1B in near future and also keep my 140 which has priority date of Sept 2018. Note my H1b I have already completed almost 6 years of H1B, but have approved 140 in Hand.

Is it possibility that once changed to F1, I need to START ALL OVER AGAIN, The 140 needs to be file again and I also loose my H1B, I have to again come in lottery and file the H1b again through the lottery process.

I really appreciate your thoughts/advice and help in these difficult times.

Thank you

Change of status to F1 can be filed only if i94 has not expired.

You won’t lose i140 and H1B. You can file it again whenever you want.

1 Like

I updated my answer. You cannot file COS as your i94 has already expired.

If you file, chances are high that it will be denied.

Ok got it , thanks a lot for your help…

Hi Anil,
We had requested my Employer to withdraw the old petition which had RFE and were my project was ended abruptly. He instead replied to RFE petition with some paper work we got from the client on March 27 and also File a new amendment cum extension on the New (current) project on March 20/2020 which I am working on.

Uscis just recently approved my pending RFE where my project was already ended, but they gave me approval for only 2 months, where my end date on Approval is End date of my Previous project which ended on Jan 17/2020.

My Question is , am I still out of status ?

Originally my H1 was expiring on Jan 31, 2020 and I94 expiring on Feb 10/2020 before the pending RFE was replied, as now USCIS approved the pending RFE , but backdated my End date of H1b to end date of my previous Project which is Jan 17/2020.

Under this situation what happens to my new petition will it be approved with I94 ?

I will get H1b approved but I wont get I94 as I was out of status from Jan 17 to March 23/2020, have to go for H1b Stamping.

Please advice ?

I think i have already given clear answers earlier. You are just asking the same questions again and again.

It is better you consult an attorney.

Ok, I am sorry Sir !

I have RFE on h1 amendment . That client project got over due to Covid . H1 valid till august 2022.

  1. Can I do h1 transfer with another employer ?
    Will there be any issue because of h1 amendment RFE? Should I inform my new employer about that ?

  2. Can I do change of status to h4 ? Will h1 amendment RFE has any impact on the H1 to H4 COS ?

  3. If in case either transfer / h4 is approved - I resign from my current employer - what are they suppose to do to RFE on amendment ? If they just withdraw h1 & amendment - Will there be any issue if I want to come back on h1 from h4 ? Or do extension on new h1 ?

Hi @Kittu

Please read above discussion.