RFE to prove Employer right of control and H1B status maintenance in past

RFE reason 1: “Employer right of control”

So, turns out RFE was for “Employer right of control” because in client letter my manager had a line which said i ll report to him.

RFE reason 2: Proof of H1B status maintainance

Also another issue was they were asking to prove that beneficiary maintained the non immigrant status all the time.
Because my initial LCA was approval for a company X in A city for job tittle 1 however i joined a company Y in B CITY for job tittle 2.

LCA amendment was never filed.
It was filed along with this extension so USCIS asking to prove that I always maintained my status and my lawyer says because CITY A AND B are within 50 miles so i can work at JOB 2 on same LCA,
Is that true?

You can work in city B only if it falls in the same MSA as city A. I have not heard of 50 miles limit.

The whole concept revolves around MSA (Metropolitan statistical Area) limits.

Even when you change your location within same MSA, the LCA has to be posted at work location. It is NOT required to be approved though, if the new job location falls within same MSA.

Also, it is important to see if there was material change in your job, which requires an H1B amendment.

Since, you started working for an entirely different client than approved for, without filing an amendment, this could cause trouble with your maintenance of H1B status.

sorry, that is what i mean. Both locations for employer A and B falls under same MSA and i have verified it from this govt website -

Also, how would we prove now that LCA was posted at the time at work location back in 2014 when i joined client B.

sorry dont know what you mean by material change ?

look at the USCIS response for question no 13 on this official doc -

Proof of LCA posting at new client location

The client’s HR or the project manager will have to attest using their email or HR Logs saying that LCA was posted on so and so date.

The LCA’s posting location within the office has to be clearly mentioned with the time period for which it was posted.

Any other proofs like emails at the time of booking can also be served as proof of LCA posting.

H1B material change

  1. A change in the place of employment of a beneficiary to a geographical area requiring a
    corresponding LCA be certified to the Department of Homeland Security (DHS).

    In your case, since you just mentioned that you are within same MSA, this should not be an issue.

  2. When there is a material change in the terms and conditions of employment, the
    petitioner must file an amended or new H-1B petition with the corresponding LCA.

    In your case, I am not sure what all changed with respect to your job duties and title.
    So, if the job duties/ title changed with respect to what was mentioned in your approved H1B at that time, it is considered a ‘material change’.

Source: USCIS

Looks like you posted this link while I was typing.

This is the same thing that I have also told you.

Let me know if you need more information.

whats on that link doesnt talk about material change as all. MY job tittle and job responsibilities did change compared to what was on original LCA

Hi @amit

I have split the topic into a new one as we are discussing RFE reason and resolution. Please respond on this topic now.

I already shared the most recent guidance by USCIS (issued in 2015) and it was a major announcement by USCIS at that time.

Before this announcement by USCIS in 2015, even the location change from Florida to Boston would NOT have required an H1B amendment including the client change.
You could have worked on same H1B by just posting a new LCA (no approval required either by DHS at that time).

But after 2015 memorandum, this is NOT possible.

Okay so i think that is even better for me because my job change happened 1st week of feb 2015 and i think this came out in April 2nd week of 2015

Yep, looks like you just dodged a bullet if you indeed moved before this USCIS notification.

The major thing to tackle now is your LCA proof.

I think i can get that done as my director is good and very helpful so i can get the him to give me a client letter and mention they advertise the job in house before i joined.

Ok. Sounds good.
Let us know how you handle it and how it results in RFE decision.

Okay , i have few more questions while my attorney is preparing to respond to RFE -

  • USCIS asked for all the pay slips and earning sheet since day one (OCT 1 2014) to prove that i maintained the non immigrant status however i arrived in US on OCT 16 and also my payroll didn’t kicked in till DEC 16 2014 and i have all the pay slips and earning details since then so meaning the initial 60 days i don’t have pay stubs. is this going to be an issue and if yes, what can be done about this?

  • Also as lawyer is preparing to respond to RFE and they will do this either this week or next week and then i assume USCIS will take 15 days (Premium processing) however my 240 days since I94 expiry will be over on June 04/2018. Can i continue to work or i have to stop till there is a decision from USCIS even though there is an RFE decision pending?

Hi @amit

H1B RFE - Payslips / Pay Stubs

As far as pay slips are concerned, you can only show them starting Oct 1, 2014 if that was the first time you arrived in USA.

I don’t understand why there was a gap of 60 days between your day of arrival and first pay? Any specific reason?

And the salary that you received after 60 days contain the pay for all 60 days or something else?

This is crucial to prove that you were paid the salary starting your 1st in US on H1B status.

Also, the payslip should reflect the amount mentioned in your H1B application salary.

RFE Response waiting and 240 days expiry

You should STOP working after 240 days to avoid violation of your H1B.

It is good that you have filed in premium processing and it may help you get results faster.

I usually strongly recommend to leave USA after 240 days and wait for result outside.
This helps in avoiding issues with USCIS in future applications.

Remember, your time after 240 days will always be counted as ‘Out-of-Status’ if you do not stop working and go out of USA.

60 days i didn’t get anything because the initial project got delayed

also, I thought i can legally stay in US after 240 days of i94 expires if H1B petition is pending provided im not working anywhere, is this not true?

Hi @amit

  1. I am afraid that your 60 days of no salary violates the H1B status!
    This should have NEVER be done.
    If your employer can, they should do something to fix this somehow.

    I do not know if they can back date the salary slips or not but this is a big concern for me.

    You have to be paid by your employer irrespective of whether you are working on project or not.

    I am pretty sure your employer would have ran your payroll for those 60 days and had paid the payroll taxes to avoid any H1B violations. It is a different matter if they did not pay you the money though.
    Just check with them and see if they really did ran the payroll.
    I know that this is what most of the contracting companies do to stay on the right side of law.
    If they did, you probably are safe :slight_smile:

  2. Nope, this is NOT true.

    I know many forums and people will tell you that you can stay without working after 240 days, but, there is NO official USCIS guidance on it. So, USCIS may or may not be lenient with you.

    I would NOT recommend you to attempt it. It is very risky in today’s scenario.

    Your authorization to stay in US officially ends with i94 expiry.
    The only exception is if your application is pending with USCIS and that too only for 240 days.

    After 240 days, you immediately start adding ‘out-of-status’ days to your name.

You will have to explain the reason for the time you spend after these 240 days i94 expiry in USA (without any valid status) in all future applications.
This will also become a regular question in your US embassy interviews.


3 posts were split to a new topic: H1B RFE: Can we Prove gap in payroll as medical leave?