I am with Employer A working for client A when H1b extension filed. My I-140 is approved. While waiting for approval, my project with Client A got over and I moved to another client B with same employer A.
My employer A, Client A and Client B are in same city within 20-mile radius, so employer filed LCA not amendment.
I got RFE asking for Client A details (SOW, Client letter) next day of joining client B. My employer is planning to respond to the RFE with new Client B details.
What are chances of approval or denial in this case? Legal response in this case will be appreciated
Or if anyone was in this situation please respond.
H1B Amendment when changing client A to B should be filed
As far as I know, the #h1b-amendment should have been filed when you changed your job location from client A to client B as this amounts to material change in the job.
When was this change done? Was it done recently or before 2015?
Chances of Approval of H1B RFE for Client A
The chances cannot be defined as it is dependent on the paperwork that your employer submits and its own credibility.
Thank you Anil for quick response on the case.Please see below response
H1b- amendment - I asked employer to do H1b - amendment but they said we don’t do amendment for same city as per their lawyer. My company is in Columbus, OH and attorney is Fragomen.
Client change was done last month June, 2018 and RFE came on client A next day after joining client B.
MY I-94 is expiring in july 2018.
Please suggest on my part what should I do and what are my options
Thanks in advance!
Thank you Anil!
My I140 was filed in 2012. I am above 6 year cota. I got RFE asking details for client A.
When I asked employer how are you going to respond to RFE. They said we will be providing details of client B with SOW and all supporting documents.
Employer said it is normal business in consulting that Projects keep on changing and if extensions going on then we provide new client details though they are asking for previous client details.
How you take it, if USCIS is asking for client A details and company/Lawyer providing client B detail?
If suppose it got another RFE or denial then what option do I have since my I-94 would be expired by that time!
Well, I cannot really guess how USCIS is going to react to it.
But, what I know is that if they do not provide the documents requested in RFE, the chances of approval are slim.
It is strange that they will provide documents for Client B when they filed extension for Client A!
If H1B extension is denied
You will need to find a new employer and file #h1b-transfer using your I140 if you want to stay in US and keep working.
But, that should be done before your i94 expires!
If you file H1B transfer after waiting for H1B extension denial and your i94 expires, you will have to leave US and re-enter in case of H1B transfer approval.
Employer is going to state that assignment for Client A was over and employee has moved to another assignment at Client B. Do you feel that since USCIS has asked for client A details then employer should provide those details despite of the fact that I am no longer working for client A. And one more thing getting client letter for client A would be very hard though they have details from Vendor and SOWs.
I have no idea how your employer is going to handle this.
May be they are experts and know how to manage the RFE’s with Client A letters and submit Client B’s papers.
I would certainly submit documents that have been asked by USCIS and not something else.
Thank you Anil for response. What is the rule for filing LCA for new client, does it has to be filed before joining client or after. If it is after how many days/weeks are permissible?
One Memo came on NTA recently, How should we read that , "after denial we are not allowed stayed even though new petition is filed?
Yours answers are really helpful to community. Thank you!
Anil,
I have below question please respond, appreciate your quick help as always!
As you know my current application is under process for RFE response. I am looking for another project with different employer. I want to have backup plan in case this current extension gets denied.
My I-94 already expired -
What options DO I have?
If I get new client/project in couple of weeks from now then I will file for H1 transfer. Do you see any issue in this?
Can I join new client based on receipt or should I have to wait for I-797 approval notice?
In what situation USCIS provide approved with consular processing?
Is there any rule that if H1b transfer done after n number of days of I94 expiry then it is good else it will be approved with consular processing.
1. Can I file H1B Transfer when I 94 expired and RFE on current H1B extension pending
You can file for h1b-transfer but remember the transfer might not be approved before you get decision on your current pending h1b-extension.
The chances of getting an RFE are very high as your H1B extension (which is a bridge for your H1B transfer) is still pending.
One example real life case similar to this:
2. Join H1B transfer client based on receipt
You can legally join new H1B transfer employer based only on receipt.
But, it is very dangerous in today’s time. I would strongly recommend to wait for final approval before joining.
Remember, in your case, your i94 has expired and if the H1B transfer is denied after you join the new employer, your ‘Unlawful presence’ starts the day your application is denied.
3. In what situation USCIS provide approved with consular processing?
Consular processing is provided in cases if you file your H1B transfer or extension application after your i94 has expired.
In your case, it will be ‘consular processing’ if the H1B transfer is approved.
4. Any rule for waiting number of days after i94 expiry to eligible for consular processing?
Yes, you are eligible for consular processing immediately after your i94 has expired.
Any new application (H1B transfer) filed after i94 expiry will be approved with consular processing only.
Thank you Atul for quick response. I was talking to one employer and he said that they can get petition approved from USCIS without consular processing, if transfer is initiated within 60 days of expired I-94. So that why I asked question
So you are suggesting that H1b transfer will lead to more complication in the case, it better to get response back from USCIS !
So in case of extension denial my employer can file for new H1b in that situation also it will be approved with consular processing. In case of consular processing Instead of doing it in India, can it be done in Canada?
I have no idea what tactics the prospective employer will use to get your transfer without consular processing.
Many small consulting companies try to lure candidates by promising the sky and then make them suffer once they have bought the promise.
It is up-to you to take a decision.
I would not recommend falling into the trap unless you are ready for the worst case scenario too.
If your current H1b extension is denied now (with your i94 already expired), you will have to leave US immediately.
Your employer can file a new H1B extension application after denial, but you can’t stay in US and work. You have to go out and wait for the result.
So, basically, you will have to go out and get consular processing done anyway in case of denial now.
I apologize for putting incorrect name.
I agree with you it was looking fishy to me when then new employer said like that! Thanks for clarification.
In case of extension denial, I can not work as company would be filing new H1B in Premium within a week in that situation also I have to leave country. In this situation Cannot I start working with Receipt notice?
Other question- Can consular processing be done in home country or it can be done in Mexico or Canada?
No, you cannot start working on receipt (if your company files H1B in premium after extension denial) because you do NOT have a valid i94.
Valid unexpired i94 is required to stay in USA and maintain status.
You would start adding ‘Unlawful status’ to your name after the day extension is denied.
Consular processing can be done anywhere in US embassy outside USA including Mexico and Canada.
But, people do prefer to go to their home country as a matter of choice.
Anil,
I would like to update here on thread that my H1b got approved for 3 years in the scenario where client got changed during extension and RFE came on first client. Attorney responded to RFE with new client documents. There was no amendment filed because both client comes under same MSA rather LCA was filed for new client.
Hope this helps other readers.