H1B Transfer/Extension Denied though Employer B, Filed Again Got RFE this Time

[Tran]

Hi Can someone please help me with your valuble suggestions and options

I came to USA in March 2014 through Company A, and had valid Visa until November 2016,

In the month of August 2015, I filed new petition through Employer B working at same client, Got an RFE and got Deined in November 2015, I was still with old employer until December 15th had all the payrolls with him. The reason for denial is "employeer Employee RelationShip" for the period Requested.

In the Month of December 2015, I filed again a new petition with employer B again for same Client with Different Vendor.

Again Got an RFE, the RFE states as below

Maintenance of Status

It appears that the beneficiary previously obtained H- lB on October 1, 2013, pursuant to a
petition
filed on his/her behalf by Company A. Therefore, you must demonstrate that the beneficiary has
maintained the H-lB nonimmigrant status afforded to him on that date until December 15, 2015, the
date the present petition was filed.


You submitted two copies of the beneficiary's pay statements issued by Company A. The pay
statements document employment with Company A from October 1, 2015 to November 30, 2015 .


In support of this petition, you submitted the following evidence to establish an employer-employee
relationship would exist throughout the duration of the requested period :

An E-mail written by the beneficiary on December, 2015 to a Client;

Approved time sheets from Client for the beneficiary documenting a time period from
October, 2015 to December, 2015;

Screen shots of the Client Intranet of the Contractor Time Reporting System
(CTRS) which documents timesheets that were submitted by the beneficiary and approved by Client
personnel.
The screen shots document a time period from September, 2015 to December 13, 2015;
•Various E-mails documenting work being completed by the beneficiary for The Client. These
E-mails document a time period from September, 2015, to December, 2015.
The evidence that was submitted to establish an employer-employee relationship contradicts evidence
that was submitted to establish maintenance of status. It is not clear how the beneficiary was able
to maintain his employment with Company A, while he was providing his services to The Client
through the petitioner.

USCIS records indicate that the petitioner previously filed a petition on behalf of the beneficiary
USCIS records also indicate that this petition was denied on November, 2015.
Under portability provisions employment authorization continues until the new petition is
adjudicated and if the new petition is denied, employment authorization ceases. Upon denial of the
petition the alien will no longer be in an authorized period of stay and he or she will begin to
accrue unlawful presence. Although the alien's status ends as of the date of the expiration of the
I-94 or I-129 petition, unlawful presence begins to accrue as of the denial of the petition.


The evidence that was submitted does not establish that the beneficiary has maintained valid H- lB
status.



Right to Control


Scenario 1: I have not informed my employer A that I am trying H1b with different client, I informed them my contract ended please market my resume

If in case My H1b got Denied after sending the RFE response, Can I hook the vendor to my Old employer and continue with him as usual

Scenario 2: if Company B starts running my payroll and submit the RFE and after the rfe response if I get denied Can I switch back again

Please suggest me what is the best approach to be followed keeping my h1b status and everything in tact

Also, please answer what documents I need to send for showing that I am in "Maintenance Of Status" and "Right to Control"

[shervin143]

If your petition with A is valid, then you can continue to work for that employer as long as you are still employed with them. If the work location will be the same, then there will be no need to file a amendment. The vendor can be different.

Once you start working for B, you cannot go back to A without A having to file a transfer again. In your case, a transfer won;t be possible to A or to any other employer if you join B and if their petition ends up getting denied later. So it is not advisable to join B until their petition gets approved.

[Tran]

If your petition with A is valid, then you can continue to work for that employer as long as you are still employed with them. If the work location will be the same, then there will be no need to file a amendment. The vendor can be different.

Once you start working for B, you cannot go back to A without A having to file a transfer again. In your case, a transfer won;t be possible to A or to any other employer if you join B and if their petition ends up getting denied later. So it is not advisable to join B until their petition gets approved.

Thank you for the quick response,

I have not informed my previous employer that I joined Company B, But Company B will not run any payroll until I recive approval notice from Company B, also I am working with the Vendor at client location with employer B, and informed Employer A that my project completed. Please look for new Project. But Employer A will run the payroll

When is it considered out of status, only if payroll is processed from company B and H1b is denied?

[shervin143]

What you are doing is illegal. You can be working for only one employer when you are in H1B. If you are still with employer A, then they should pay you irrespective of whether they can provide you work or not. If not they should withdraw your H1B. But until they send the withdrawal notice, they should pay you as per the approved LCA. If not, you are considered to be out of status on H1B. You have all rights to file a complaint with DOL to make employer A pay.

If you are working at the client place through employer B, they you are technically employed with them. Meaning, you have already started working for employer B upon receiving their H1B transfer receipt notice. This is acceptable. But they should be running you payroll. If that is not happening now, then that is illegal. If anytime during this course, if your pay checks with employer A and B has the dates intersect, then you will be in trouble. So make sure you do not get paid by two different employers at the same time. Once yu get even one pay check from employer B, you cannot go back to A without filing a transfer or leaving U.S and returning back on A's petition.

You working for B without getting paid is against the H1B regulation.

Thank you for the quick response,

I have not informed my previous employer that I joined Company B, But Company B will not run any payroll until I recive approval notice from Company B, also I am working with the Vendor at client location with employer B, and informed Employer A that my project completed. Please look for new Project. But Employer A will run the payroll

When is it considered out of status, only if payroll is processed from company B and H1b is denied?