H1B transfer to new Employer, issue with H4 Extension I539

[Srichi]

I recently secured a job in new employer(Company B) and they are about to initiate my H1B transfer. I have my spouse on H4. The i539 filled by my current employer (Company A) for my spouse is still under pending decision status. Reason being the i539 extension for H4 was filed in 3rd week of Nov 2014, but the Vermont processing center is still currently working on petitions filed on 30th Sept 2014. So the status is in petition accepted/Receipt generated but pending decision state.

Now the situation is, my new employer (Company B) is going to file my H1B transfer and a new i539 extension for my H4. They mentioned that there have been previous instances where they have applied for a i539 extension (for the new employer Company B) when the current i539 decision (Applied by Company A) is still in pending status and the USCIS officer had denied the petition and they lost status and had to return to home country. How often does this happen? If anyone has faced similar situation before, please share your experiences.

The HR said they will speak to the attorney and come back with a decision. Worst case my spouse has to leave the country. I am worried and need advise.


Thanks.

[shervin143]

Actually there is no such thing as H4 transfer. Only the H1B gets transferred. Just because you are changing employer (filing H1B transfer) there is no need to file a new I-539 for H4. H4 is not associated with your employer. H4 is associated with your H1B status.

That being said, a petition being pending for more than 6 months is not good. When you do not get a decision after 90 days from filing the petition, you should take an infopass appointment with USCIS to discuss your case. People who have filed the H4 extension in recent times have got their approval. Just don't go by what you see in their web sites related to processing dates.

[Srichi]

Thanks shervin143 for the response. I am illiterate about the actual processes and proceedings. I am getting educated by going through many immigration help portals. I am confused as to what course of action I can take on this. Any advise/suggestions are welcome.

When I asked about the delay (6months) the attorney said the Vermont office is currently processing the petitions filed during September 2014. The petition was filed in normal process and not priority.

[shervin143]

H4 petitions cannot be filed under premium. Your attorney should contact USCIS to discuss the case as it is almost 6 months now. It is never advisable to stay this long based on a pending petition. If the petition ends up getting rejected, all the time spent in U.S after the last I-94 expiry date will be treated as illegal stay. So you should try and get a result asap. If your company attorney is unwilling to contact USCIS regarding this, you can get the help of some other immigration attorney.

Thanks shervin143 for the response. I am illiterate about the actual processes and proceedings. I am getting educated by going through many immigration help portals. I am confused as to what course of action I can take on this. Any advise/suggestions are welcome.

When I asked about the delay (6months) the attorney said the Vermont office is currently processing the petitions filed during September 2014. The petition was filed in normal process and not priority.

[Srichi]

Thanks for the response. I will check with the attorney on the reason for the delay if they are reluctant I shall try get help from a different attorney.

"If the petition ends up getting rejected, allthe time spent in U.S after the last I-94 expiry date will be treated as illegal stay. So you should try and get a result asap. If your company attorney is unwilling to contact USCIS regarding this, you can get the help of some other immigration attorney."


My wife's i94 doesn't expire till Feb 2016. So if worst case, i539 gets denied, would she be out of status for all the time since the petition was filed or would she be able to stay till Feb 2016 or would she have to leave US because the i539 is denied?

My new employer said in any ways, they will be filing a new i539 for my wife along with my h1b transfer papers. both our i94 will expire by Feb 2016. They are also going to indicate in the filed papers that a previous i539 was applied and is pending decision. Once done, they will move further based on the response from the USCIS. I'm confused, does this put us in trouble?

[shervin143]

Are you saying that your wife H4 I-94 is valid until Feb 2016? If that is the case, why was form I-539 filed? She is already in a valid H4 status and there was no reason to file form I-539. You are supposed to file that only when her H4 I-94 is about to expire and when you want to extend her status further (EOS can be filed only 6 months prior to the I-94 expiry date). This confusion could be the reason why her case is still pending. Anyways, she is legal until her I-94 expires. If the filed petition is denied, then the best thing to do is to leave the country and re-enter back in H4 visa.

My wife's i94 doesn't expire till Feb 2016. So if worst case, i539 gets denied, would she be out of status for all the time since the petition was filed or would she be able to stay till Feb 2016 or would she have to leave US because the i539 is denied?

My new employer said in any ways, they will be filing a new i539 for my wife along with my h1b transfer papers. both our i94 will expire by Feb 2016. They are also going to indicate in the filed papers that a previous i539 was applied and is pending decision. Once done, they will move further based on the response from the USCIS. I'm confused, does this put us in trouble?