H1 extn denied, can I transfer to new employer

[jar1134]

Hi,

My H1 extn got denied, but attorney re-filed before expiry, so I am still able to work for existing client. Reason for denial cannot be rectified by existing employer, so most likely it will be denied again.

Now to be on safe side, I wanted to switch to another employer, found an employer who is confident to get H1 transferred, but I had consulted a top rated independent attorney who said that any new employer's visa will not be approved until there is a decision on the existing employer's visa extension petition.

Although I have given the papers to new employer to do the transfer, still wondering who is correct, new employer or independent attorney.

Also, is it safe to resign from existing employer after new employer get H1b receipt no. ? Either way the existing employer does not have an approved visa, so its better to start working for new employer given the high probability of denial with the existing employer.

Kindly share you opinion on my situation.

[raghvi]

Hi,

My H1 extn got denied, but attorney re-filed before expiry, so I am still able to work for existing client. Reason for denial cannot be rectified by existing employer, so most likely it will be denied again.

Now to be on safe side, I wanted to switch to another employer, found an employer who is confident to get H1 transferred, but I had consulted a top rated independent attorney who said that any new employer's visa will not be approved until there is a decision on the existing employer's visa extension petition.

Although I have given the papers to new employer to do the transfer, still wondering who is correct, new employer or independent attorney.

Also, is it safe to resign from existing employer after new employer get H1b receipt no. ? Either way the existing employer does not have an approved visa, so its better to start working for new employer given the high probability of denial with the existing employer.

Kindly share you opinion on my situation.

I am assuming your I-94 has already expired.

In my opinion the independent attorney is right. Even if you file a transfer to another employer first thing that USCIS would seek to verify is whether you are in status or not. Now, in order to be currently in status, you should be working and getting paid with the H1 employer whose petition USCIS has approved previously. As you currently dont have an approved extension petition with the employer you are working with currently, you basically are out of status and will continue to remain unless, as stated by the independent attorney, the current employer's extension petition is approved.

if you are certain that the extension will still be denied, the safest way out of this situation would be to file the transfer to another employer as consular process, leave US, and return with new visa stamp of the new employer's approved petition.

This is my opinion not legal advice.