RFE on H1 amendment

USA H1B Visa
1

Hi

I got my H1 through in 2018 cap lottery.

My H1 was filed with a client in New York but my project got ended and I had to move to a different client in Dallas.

My employer did not file an amendment for some reason and my H1 got approved for NY client sometime in September.

After some delays with the immigration lawyers, my employer then filed an amendment in October end with Dallas client.

Now we received an RFE on it stating maintenance of status as the filing was done after i started working for the client.
Whats the way to get out of this situation?

I hear from my employer that consular processing is the only way, but my personal situation is quite critical that i might not be able to go now.
Any thoughts on how to get out of this RFE?

2

Hi @lmr

This is a tough situation to handle and only you and your attorney know the details.

Why H1B amendment was not filed at right time?

I am sure your attorney would have prepared documents to ‘Explain the situation’ why the ‘amendment’ was not filed before starting work at new location.
If USCIS can be convinced with your attorney’s reasoning, then they may approve it.
That’s the only way I know and they do approve in certain cases.

USCIS is pretty strict these days with H1B visa approvals and your chances look tough with a self made employer decision problem.

Consular Processing Stamping at US Embassy

Sorry to say but even if you leave the USA and get the Visa stamping at US embassy, Visa officer WILL ask you questions about this non filing of Amendment at right time.

This is considered a serious violation of your H1B visa.

Let me know if you need more information.

3

There is no valid reason for not filing the amendment, am quite sure about that. Inspite of me telling , they did not file it on time. Is there a way to get through this situation if i do h1 transfer at this time ? that’s the only thing that i could c happening from my side.

4

Hi @lmr

Well, you can certainly try H1B transfer but I am not really positive about its result either, given the mess your current employer has created.

What are your employer’s attorney views here?
Since, they know the in and out of your specific case, they may have more to say.

5

They have no views absolutely,and they feel on consular processing there are chances for approval . I am not very positive about going forward with my employer. So am really considering to look for a different full time opportunity. So do you think they might look at the rfe reason when the new petition is filed ?

And one more thing what i thought was , may be continue with same employer and look out for a client in NY and withdraw the amendment ?

Just random thoughts to get out of this situation. Let me know what you think.

6

Hi @lmr

I can understand your situation and the agony your employer has caused.

At this time,

  1. I would suggest to find a new employer and file H1B transfer. That probably is your best chance to stay in USA.

  2. While each H1B application (including transfer) application is adjudicated separately based on the documents submitted with it, USCIS also looks at prior H1B violation, if any.

  3. In your case, USCIS may send an RFE on transfer application too, asking to explain the reason behind earlier violation.

  4. Going back to NY in the same MSA (Metropolitan Statistical Area) and with SAME employer should have been done before filing this amendment.

    Going back would have worked only if you had maintained the same status as mentioned in your H1B application.

    That would have probably kept things under the carpet.

    But, now, that you have already applied, USCIS has official records. They will always be there and questions will be asked.

7

Thanks for your response. I ll go with point 1 as that’s the only option left. When a h1 transfer is filed by a different employer, how do you think they are responsible for answering for the mess caused by a different employer. I understand the violation caused will have to be answered by someone, but i don’t understand how it can be done by the new employer.
And yes, am ruling out option 4.

8

I know the new employer cannot answer the question about old employer’s fault but that does not mean that USCIS will forget the violation.

I said, they may or may not ask.

If they do NOT ask, you are good to go.
But, if they do, they will ask about specific things to explain in their RFE and who needs to respond.

Since, this is about what might happen, you can decide to answer at that time or see what options you have at that time.

9

So do you think they may ask the old employer to answer this. Because if i leave them, i don’t know if they will be open to help me after that. Sorry to keep asking similar questions, but this is absolutely a new situation for me and i got my h1b in my last attempt ;(. So i dont wanna lose it .

10

Well, I cannot guess what USCIS will ask in the RFE, if they will.

But, there is a chance that they may ask.

Off-course, if you leave your current employer, they will withdraw your H1B amendment and its RFE. They may just not respond to any queries later.

That’s a risk you need to take now.

11

Hmm Ok. Thank you for your response. Let me see how things progress.

12

Sure. Let me know if you need more information.

Keep us posted on your progress. We might be able to help.

13

Sure. Thank you. I ll keep you posted.

14

Hey , I filed my H1 transfer and that got approved . We also tried to respond to the RFE we got on the amendment, but that will anyway be withdrawn in sometime.
Also hoping USCIS having a record of my RFE response wouldn’t disturb me anytime in the future.

15

Hi @lmr
Congratulations. Thanks for sharing the result.
All the best for your future endeavors.