URGENT OPINION NEEDED: H1b transfer denied, should I leave country?

[azyi31]

I was working with employer A for past 3 years.
Found a new project and applied for H1b transfer through Employer B and got receipt on April 3rd
Started working with new client from April 15th. After 2 RFE's, online status has changed to denial on USCIS website on July 1st.
Previous employer has revoked my H1 on April 30. I have not yet received the notice of denial and my current employer is telling me to work till I get the official notice and he will re-file a new petition in the next few days under premium processing. Also asks me to take a break for a couple of days until I get a new receipt number and then continue working for the same client.

A little background about me- I came on F1 visa in 2008 and I have not stepped out of the country to get a H1b stamp till date. This is my 2nd year in H1 and the I94 on my passport says D/S. The last I travelled out of the country was in 2011 under F1 status.

My questions/ options:
1. Will I be out of status after I get the denial notice? If yes, is there a grace period?
2. Does applying for a new I 129 and getting a new reciept allow me to continue work with the same client?
3. Does I 94 D/S apply as a backup temporarily for me to stay in US until i have figured an option out?
4. Should I look at converting back to F1 and attend school?
5. My last resort will be to go under H4 under my spouse's H1. Can I do a change of status during this period?
6. Is there a way to completely avoid leaving the country if required?

Please let me know.

[raghvi]

I was working with employer A for past 3 years.
Found a new project and applied for H1b transfer through Employer B and got receipt on April 3rd
Started working with new client from April 15th. After 2 RFE's, online status has changed to denial on USCIS website on July 1st.
Previous employer has revoked my H1 on April 30. I have not yet received the notice of denial and my current employer is telling me to work till I get the official notice and he will re-file a new petition in the next few days under premium processing. Also asks me to take a break for a couple of days until I get a new receipt number and then continue working for the same client.

A little background about me- I came on F1 visa in 2008 and I have not stepped out of the country to get a H1b stamp till date. This is my 2nd year in H1 and the I94 on my passport says D/S. The last I travelled out of the country was in 2011 under F1 status.

My questions/ options:
1. Will I be out of status after I get the denial notice? If yes, is there a grace period?
2. Does applying for a new I 129 and getting a new reciept allow me to continue work with the same client?
3. Does I 94 D/S apply as a backup temporarily for me to stay in US until i have figured an option out?
4. Should I look at converting back to F1 and attend school?
5. My last resort will be to go under H4 under my spouse's H1. Can I do a change of status during this period?
6. Is there a way to completely avoid leaving the country if required?

Please let me know.

What was the reason for denial?

A denial pretty much means you are out of status from the day you joined the employer B. I dont see how re applying a new I129 could help, if they planning to file an MTR that also too validate your current status.
1. Yes you do seem to be out of status once denial notice is served to you as you dont have a basis on which you working for the current employer. There is no grace period.
2. I dont think that will help as another I129 filign would be valid only are already be in status.
3. I dont think so. the F1 status pretty much ended the day you originally moved to H1 for previous employer.
4. I dont think that is feasible considering that you are already out of status.
5. You cannot do a change of status while being out of status.
6. Dont think there are any. Talk to an attorney to confirm.

This is my opinion not legal advice.

[azyi31]

What was the reason for denial?

A denial pretty much means you are out of status from the day you joined the employer B. I dont see how re applying a new I129 could help, if they planning to file an MTR that also too validate your current status.
1. Yes you do seem to be out of status once denial notice is served to you as you dont have a basis on which you working for the current employer. There is no grace period.
2. I dont think that will help as another I129 filign would be valid only are already be in status.
3. I dont think so. the F1 status pretty much ended the day you originally moved to H1 for previous employer.
4. I dont think that is feasible considering that you are already out of status.
5. You cannot do a change of status while being out of status.
6. Dont think there are any. Talk to an attorney to confirm.

This is my opinion not legal advice.

Thanks for your opinion raghvi. I have yet to hear about the denial reason.
The reason my employer is filing a new H1 is hoping to get it approved and then asking me to leave the country to get the new H1 stamped. Apparently he has done this method earlier and it worked. Right now I am in a dilemma on which path to take..

[inadmissible]

I'm not sure how many paths you have to take. You are accruing unlawful presence.

If your employer can get a H petition approved for you. Then, you can then apply for a new visa, as long as you have not accrued enough unlawful presence to render you inadmissible. 180 days.

[azyi31]

I'm not sure how many paths you have to take. You are accruing unlawful presence.

If your employer can get a H petition approved for you. Then, you can then apply for a new visa, as long as you have not accrued enough unlawful presence to render you inadmissible. 180 days.

What do you mean by "If your employer can get a H petition approved for you. Then, you can then apply for a new visa"
Also, do you know if the unlawful presence starts from the day i started work with the new employer or is it the from the denial notice date?

[raghvi]

What do you mean by "If your employer can get a H petition approved for you. Then, you can then apply for a new visa"
Also, do you know if the unlawful presence starts from the day i started work with the new employer or is it the from the denial notice date?

Petition, visa and I94 are three different things. What it means is that the employer has to first get their petition approved. Petition approval results in the approval notice I797. This I797 can come with an I94 or without it. In your case if employer files a new I129 then based upon the new details in the I129 if it gets approved it would most likely come without an I94 as you are currently out of status. But you can take the approval notice and go for fresh stamping.
Your out of status period pretty much starts from the day you don't have any of the three expired, that is I94, valid pay stub and valid I797.

This is my opinion not legal advice.

[azyi31]

Petition, visa and I94 are three different things. What it means is that the employer has to first get their petition approved. Petition approval results in the approval notice I797. This I797 can come with an I94 or without it. In your case if employer files a new I129 then based upon the new details in the I129 if it gets approved it would most likely come without an I94 as you are currently out of status. But you can take the approval notice and go for fresh stamping.
Your out of status period pretty much starts from the day you don't have any of the three expired, that is I94, valid pay stub and valid I797.

This is my opinion not legal advice.

To your last point, my I797 was revoked on May21st. Now does that become my start date for becoming OOS or the date from the physical denial notice?
Thanks.

[raghvi]

To your last point, my I797 was revoked on May21st. Now does that become my start date for becoming OOS or the date from the physical denial notice?
Thanks.

You would be out if status from your last valid pay stub with A.

This is my opinion not legal advice.

[vish_h1_gc]

I'm not sure how many paths you have to take. You are accruing unlawful presence.

If your employer can get a H petition approved for you. Then, you can then apply for a new visa, as long as you have not accrued enough unlawful presence to render you inadmissible. 180 days.

What does the 180 days mean? Is it for future entry into the country?

- - - Updated - - -

Thanks for your opinion raghvi. I have yet to hear about the denial reason.
The reason my employer is filing a new H1 is hoping to get it approved and then asking me to leave the country to get the new H1 stamped. Apparently he has done this method earlier and it worked. Right now I am in a dilemma on which path to take..

My lawyer suggested me the exact same path. I have a stamped H1 which is valid until Sept 2015, so according to him me going for a new I 94 should suffice.

I want to understand from the forum that is it a reasonable choice at this point? The idea is to salvage the situation. When I file my new petition, should I aim at applying for just the I 797 or should I apply for I94 as well.

[Abhinav89]

I was working with employer A for past 3 years.
Found a new project and applied for H1b transfer through Employer B and got receipt on April 3rd
Started working with new client from April 15th. After 2 RFE's, online status has changed to denial on USCIS website on July 1st.
Previous employer has revoked my H1 on April 30. I have not yet received the notice of denial and my current employer is telling me to work till I get the official notice and he will re-file a new petition in the next few days under premium processing. Also asks me to take a break for a couple of days until I get a new receipt number and then continue working for the same client.

A little background about me- I came on F1 visa in 2008 and I have not stepped out of the country to get a H1b stamp till date. This is my 2nd year in H1 and the I94 on my passport says D/S. The last I travelled out of the country was in 2011 under F1 status.

My questions/ options:
1. Will I be out of status after I get the denial notice? If yes, is there a grace period?
2. Does applying for a new I 129 and getting a new reciept allow me to continue work with the same client?
3. Does I 94 D/S apply as a backup temporarily for me to stay in US until i have figured an option out?
4. Should I look at converting back to F1 and attend school?
5. My last resort will be to go under H4 under my spouse's H1. Can I do a change of status during this period?
6. Is there a way to completely avoid leaving the country if required?

Please let me know.

Hi,

Do you have any information on your case, if you can share it, it would be really helpful, as I'm in the same situation.