Working on H1B Receipt more than a year. Is my stay legal past i-94 expiry?

USA H1B Visa
1

Hello - Please assist with this. I have some important situation. Thanks in advance.

Context:

  1. For more than a year, I am working on a h1b receipt with my current employer B. I moved from Employer A to B and got receipt date as 05/01/2017. Employer B filed transfer with Client A and worked with client for 1.5 months. Client A project completed.

  2. Later, Employer B filed amendment for client B on 06/26/2017. It was approved. Got I797 approval copy & I-94 date valid till 12/31/2018.

  3. Whereas,the transfer petition with client A got RFE and employer B responded and it is still pending till date. Employer B raised service request with USCIS recently to get latest status.

  4. Employer A petition is valid till 06/30/2018 and it is still not revoked. In case status with USCIS, it still shows ‘Case was approved’. All the documents per Employer A approved petition, Stamped visa, i-94, h1b i-797 copy going to be expired and valid till 06/30/2018

Query:

  1. If Employer B transfer petition with client A is denied, am I legal to stay in US with Client B approved amendment i-797A with latest i-94 till 12/31/2018,considering Employer A’s petition,visa,old i-94 expiring on 06/30/2018 ?

  2. If Employer B client A transfer petition is not approved, can I still work with client B till date 12/31/2018, ,considering Employer A’s petition,visa,old i-94 expiring on 06/30/2018 ?

  3. Employer A petition validity, my visa, old i-94 is going to be expired by 06/30/2018, this month end. If Employer B transfer petition is denied with client A, say by 07/31/2018, the period between 06/30(old petition validity) and 07/31(latest h1 transfer result date), is the stay is legal for this one month period ? Can we consider client B’s amendment approval i-94 validity here, which is good till 12/31/2018 and continue working ?

  4. Can I apply now H4 visa for my dependents out side US with client B’s amendment approved i797 copy, even though h1b transfer is pending with client A.

  5. In short, what will be the impact of out come result of Employer B’s H1b transfer client A on client B approved amendment regarding its i-94 validity, legal stay, work status considering Employer A petition,i-94 expiry on 06/30/2018

Please share your valuable suggestion. Thank you.

2

Hi @anandh_gopi

Your scenario is a bit complex. I wish your case resolves fine with USCIS.
I will try to explain and see if it makes sense:

1. If Emp B pending transfer petition is denied

If your transfer petition is denied, your H1B bridge from Employer A to Emp B is broken.

In these kind of scenarios, USCIS normally rejects all other subsequent H1B applications (Amendments and extensions) filed based on the initial H1B transfer.

Most probably, you will receive the denial or RFE on your Emp B, Client B already approved application too. The chances are very high.
See a related case:

Employer A’s petition does not matter for your current work now as you have already joined Employer B.
Employer A’s petition end date does not matter unless you plan to go back to work with Employer A.

2. Emp B client A transfer petition is not approved

As I explained in point 1, USCIS will probably revoke your Emp B, Client B application too if the bridge is broken.

3. Emp A H1B visa validity does not matter

As i said, employer A’s visa validity does not matter as you have already moved on to work for Emp B.

The only thing to consider and pray for right now is that your Emp B Client A petition should get APPROVED.

Your stay is considered legal if the petition is pending with USCIS and until they make a final decision.

4. Apply H4 outside US

Yes, you can apply as long as the approval stands valid.

5. Impact after 6/30 - Emp A H1B end date

This date now has no relevance. If you decide to claim that your status till 6/30 was not in violation of H1B terms, you are out of luck as you can’t prove it.
You probably have changed job location (which was mentioned in Emp A’s H1B), when you joined Emp B.
You do not have pay stubs from Emp A anymore.

So, Emp A’s H1B and its expiry date is out of equation now.

3

Hi Anil - Thank you much for your detailed response. You are the one who explained to the core and shared your opinion. Regarding the ongoing scenario, my employer upgraded pending petition to premium. I will keep you posted about the out coming. Thanks.

4

Good. All the best.
My wishes are with you to have positive result.

5

Hi Anil - I just want to share with you that my transfer petition got denied due to client A project.

Whereas, my employer B said I can continue working in USA for Client B till Dec 31st as the amendment was approved till that date. Also, they also said the same thing what you said earlier.

i.e. There are high chances that the amendment might get revoked so they suggested filing extension as consular process with current client B. The client B project will be completed by Dec 31st and my client agreed to give client letter from Sep to Dec 2018 i.e… for 4 months.

Employer plan is to file extension in premium as consular process, if it gets approved, I need to travel to India and appear for visa interview. My visa got already expired 2 months back and I am currently working on amendment approval i.e. I-94 on the copy valid till Dec 31st.

I have the following options:

1st. Option:

1.a. File extension with Client B and if it gets approved, go to India and come back if visa is given. If extension gets approved also, most probably they may approve till Dec 31st as the client letter is given for the same date.

1.b. Once I am back, again In November or December, again they need to file another extension as the consular approved one will be valid till 31st Dec. Here, please note that my amendment is also valid till 31st Dec and the consular petition also most probably gets approved till 31st Dec.

1.c. In this case, I thought of working on H1 amendment which is valid till Dec and do not file extension now. If it gets revoked, my employer can file new petition with client B. If the amendment does not get revoked till that time, I can wait till Nov18 and file extension if the current project Client B contract is extended or I can find new project so that I can get more duration of client letter at the time of extension.

1.d. I see this option has the risk of revoking amendment, whereas, this option avoids the risk of attending visa interview and filing the extension for now which is mentioned in the following Option 2. I can work for 3 months till Dec and file extension if the project gets extended in Nov/Dec .Please share your view on this.

2nd Option:

2.a. File extension now, if it gets approved, go back to India and come back. File again in November/December based on client B project extension. Not to think of complex scenario as in 1.c. above. This option has the risk of visa interview. If it don’t get approved, I will be stuck and will loose the advantage of working for 3 months and possible extension opportunity which is mentioned in 1.d.

3rd Option:

3.a. Change to new employer and file it in premium processing. Submit amendment copy I-797 as reference while filing. I was being told by friends that If I change to new employer after a new approval, everything will be set. Can I able to change to new employer using amendment ?

3.b. This option looks good If I am eligible to transfer and I need to apply job further and get it as it takes time. The risk here is the time taking to get the job as in mean time, the amendment may get revoked(possibility) and need to leave back.

3.c. Am I eligible for the drop box option if I consider option 2 instead of going for interview.

4th Option:

4.a. Apply extension here instead of consular process and if it gets approved, file another extension in Nov/Dec. Whereas my employer was saying it may be better option to go with consular instead of local processing as recent transfer petition got denied. Both 3rd and 4th option(current) looks good as there is minimal risk

4.b. If the extension not get approved by chance, either for consular or local process, should I need to leave immediately or can I continue working with till Dec using amendment which is valid till Dec.

I know this is a complex case and so written the detailed explanation to my understanding.I am taking your valuable time here. Could you please share your view and suggestion for the options given above or you are welcome to share if any alternate option if we have. Advance thanks for your precious time.

6

Your option 1 - My opinion

As per my opinion, option 1 is too risky. Amendment can be denied anytime, you can’t really guess when.
And once it is denied, you will have to leave US as your i94 has already expired and your H1B transfer bridge is already broken.

Your Option 3 - My opinion

3.a. I do not think that moving to new employer will reset everything. You still have the same risk of broken bridge hanging on your head.
The bridge from employer A to B to C has to be maintained. If there is a break anywhere, it has to be taken care of by consular processing.

3.b. It looks good as you feel it is good for you. This may or may not yield the results that you want. Your case is too complex now to provide any advice without knowing each and every detail.
Your attorney is the best person who knows everything from start to end to guide you on how to proceed with caution.
3. c. I think you are eligible for Dropbox if your last H1B was issued in India.
http://www.ustraveldocs.com/in/in-niv-visarenew.asp

Option 4 - My opinion

4.a. I agree with your employer. At this time, your petition has to go through consular processing to get things in place.

4.b. It depends on what time frame the extension was filed for. If it was filed for future, you can keep working using the current approved petition till it expires.

7

Thank you much Anil_Gupta for taking time and responding each and every query that was posted.I appreciate your way of answering. I will post my updates here so that it might be useful for someone.

8

You are welcome. I am looking forward for your response and know, how you resolve your case and bring it back on track.
A lot more people will get benefited with your response.

All the best.

9

Hi Anil - I have a quick question. Can you please look into this.

Dated your response Jun27, you have mentioned :
“In these kind of scenarios, USCIS normally rejects all other subsequent H1B applications (Amendments and extensions) filed based on the initial H1B transfer”

1 . Does my approved amendment is valid to file extension in due of transfer denial ? It was mentioned above that h1 extensions might be not approved as the employment bridge was broken. Please share your view.
(OR)
2. Do employer need to file new H1 cab exempt petition as employer is saying both extension petition and new h1 cap exempt petition are same.

Thanks,
Anandh_Gopi

10

1. H1B transfer is the bridge link - It has been denied

Your approved H1B amendment is also based on the older bridge which is NOW broken.

You can off-course file any new H1B application extension at this time, BUT, all of them stand a chance to be rejected as they all are based on H1B transfer.

2. H1B cap exempt application

I am not clear about your question with respect to cap exempt.

11

Thanks Anil. I have rephrased the query below for ‘2. H1B cap exempt application’

  1. Filing extension option seems to stand a chance to be rejected as transfer was denied. Do I have any other option or way other than filing extension ?

  2. As the transfer was denied, is it something like employer need to file new h1 cap-exempt petition again and get transfer approval instead of opting filing extension which may likely to get denied as transfer was denied. My understanding may be right or not towards this point here, Anil.

Please clarify.

Thanks,
Anandh_Gopi

12

I am not aware of any type of H1B application that you can file to fix your current status.
You should take an attorney’s advice.

H1B cap exempt - All your H1B applications (extension, amendment and transfer) that you have filed were cap exempt.

H1B cap means that you file in H1B lottery that starts on April 1 each year.

If you file any H1B extension or amendment or anything now, it will be counted as cap-exempt.

13

Thankyou Anil for clear explanation.

Amendment approval valid till: 12/31/2018
Filing extension most likely get approval till the date: 12/31/2018 as client letter mentions the last date for the project.

Situation is like, we need to file extension as transfer got denied, but this will most likely get approved till 12/31 per client letter. On other side, amendment is also valid till same date 12/31.

I was told today by employer that filing extension application is just a back up option and not mandatory. Was told, if extension gets denied also, not a problem and I can continue working till Dec 31st per amendment.

Per my understanding, employer said they will file extension asking start date as current filing date due to broken h1 transfer bridge issue and working only with amendment. Its like, asking agency to approve the stay & work permit from current filing date. Whereas If extension also gets denied, it means the stay and work permission is also denied from current filing date. Whereas on other side, amendment validity holds till 12/31 to work and stay.

Does last action rule does not apply here for extension denial. or Can I still continue working till 12/31 per amendment even transfer is denied.

Sharing your view here would be a helping hand, Anil. Thank you.

14

Your already approved H1B amendment (up to 12/31), if not explicitly denied by USCIS, will remain valid irrespective of the outcome of H1B extension that you file now.