H1B approved without I-94, I-290 B applied whats next

[ravikumar4869]

I was in F1 Status OPT( Optional Practical training) untill December 31st 2010, got my first H1B approved on May 31st with compamy A, I had a H1 Transfer with premium processing on August 8th to another company B, On August 11 had a RFE to submit client letter and most recent paystubs, my new employer B when he submitted the RFE, forgot to submit my most recent pay stubs, when I received the H1B document in mail, in I-797 document it is mentioned as H1B Petition is approved without I-94 and asked me to go for consulate processing in the Home Country( India). and received an addtional letter from USCIS, as the decision leaves the alien without lawful immigration status due to failure of submission of most recent pay stubs. you are supposed to leave the united states in 33 days, this decision may not be appealed, however if you disagree with the decision and have evidence to prove it, you can apply for I-290 B

Present Scenario: I had all the required pay stubs and submited I-290 B with missing pay stubs. ( it has been 75 days I have submittedI-290 B but havent heard any response)

Question 1: am I eligible to stay in U.S. and work in the present scenario for employer B ? with I:290 B applied (H1B approved without I-94)

Question 2: employer A has my Approved h1B petition with I-94 which is not yet cancelled, can I go back to Employer A and start working for him ? is my Employer A petition still valid ? is employer A supposed to file any kind of amendment to take me back in ?

Question 3: if I am planning to go to visa stamping with employer A petition, can I go to any other country other than home country even though it is specifically mentioned to go to home country in Empoyer B H1b document

Question 4 : can I go stamping for Employer B petition to any other country other than home country even though it is specified to go to home country.

I have been talking to many immigration lawyers but havent got any kind of clear answers, your perspective on this case would be highlyappreciated. Its been a while and I am really confused now ??

[shervin143]

Present Scenario: I had all the required pay stubs and submited I-290 B with missing pay stubs. ( it has been 75 days I have submittedI-290 B but havent heard any response)
>>> It will take its own course of time to get a response on an MTR. Sometimes even 1 to 1.5 years.

Question 1: am I eligible to stay in U.S. and work in the present scenario for employer B ? with I:290 B applied (H1B approved without I-94)
>>> You can continue to stay and work upto 240 days. But if the MTR gets declined, then all the time that you have spent in U.S will be considered as illegal stay and that will create a lot of issues. If you stay illegally for more than 180 days, you could get upto 3 years ban. If you stay illegally for more than 365 days, then you can get upto 10 years of automatic ban from entering U.S. It is not worth taking such risk.

Question 2: employer A has my Approved h1B petition with I-94 which is not yet cancelled, can I go back to Employer A and start working for him ? is my Employer A petition still valid ? is employer A supposed to file any kind of amendment to take me back in ?
>>> If employer A has't revoked that petition, then it will remain valid. However the only option to get back to employer A is to leave the country and return back on employer A's petition and a valid H1B visa. H1B transfer is not possible in your case where you have already started accumulating illegal stay. You cannot just like that go back and start working for employer A just because their petition remains valid.

Question 3: if I am planning to go to visa stamping with employer A petition, can I go to any other country other than home country even though it is specifically mentioned to go to home country in Empoyer B H1b document
>>> You shuold go back to your home country. The possibility of getting a 221g is high in case of when a person has accumulated illegal stay.

Question 4 : can I go stamping for Employer B petition to any other country other than home country even though it is specified to go to home country.
>>> Read the above answer. You can go to any other country if you are ready to take the risk and afford to get stuck in a foregin country in case of a 221g which can take months to get clear.

[ravikumar4869]

New Petition after H1b approved without I-94

Thanks a ton Shervin143, the Information you posted is very very helpful


if an employer C has a job for me and ready to file an H1B, in that case can I do an H1B transfer to Comapny C, what are the chances of getting Approval with I -94 from employer C, what If I document everything else happened till now and submit a letter with new petition from Employer C as there was no mistake from myside and it is because of Employer carelessness he forgot to attach paystubs with RFE, is there a chance of this being working out ?

I am just trying to understand here, can I know the reaon why cant I just start working for employer A as he has approved petition with I-94, if he has a LCA for my job location and is ready to file an amendment new LCA


Thanks again, your response is highly appreciated..

[shervin143]

if an employer C has a job for me and ready to file an H1B, in that case can I do an H1B transfer to Comapny C, what are the chances of getting Approval with I -94 from employer C, what If I document everything else happened till now and submit a letter with new petition from Employer C as there was no mistake from myside and it is because of Employer carelessness he forgot to attach paystubs with RFE, is there a chance of this being working out ?
>>> Do you currently have a valid I-94 in hand? If not, then chances are very less. If you decide to try this, file in premium and get the result within 15 days. You might need to get the help of a good immigration attorney.

I am just trying to understand here, can I know the reaon why cant I just start working for employer A as he has approved petition with I-94, if he has a LCA for my job location and is ready to file an amendment new LCA
>>> It doesn't work that way. You cannot have 10 different approval notices from different employer and keep working for whomever you like. Once you start working for employer B and get paid and then if you decide get back to employer A, either a H1B transfer should be filed or you need to leave the country and get back on employer A's petition. Either of this will get you a new I-94 associated with employer A which will allow you to work for that employer.

[ravikumar4869]

Hi Sherwin

Yes I have a valid I-94 from employer A, I stopped working for him from September month, the most recent pay stubs I have with employer A is until September, I started working for employer B from August, so I am presently with employer B (h1B Approved without i-94) and my most recent pay stubs are with employer B, if I am planning to apply a new H1B transfer with employer C, am I supposed to use employer A petition or employer B petition for transfer ?

If I am using employer A petition with Valid I -94, as my most recent pay stubs are only till September, and USCIS asks what was my status from August to December, the answer is I was with employer B and waiting on my I-290 B approval or am I supposed to use employer B petition but I don’t have a valid i-94 with them

Please explain above scenario

as you have been kindly answering all my questions from the initial phase, I would just take it as a personal suggestion and use the infromation at my own risk, what would best solution for me considering all the scenarios...

[shervin143]

You are no longer working for employer A. So you cannot use their petition to file the H1B transfer. You need both the petition and the I-94 associated to employer B to successfully transfer the petition to employer C.

In my opinion, the best option is to leave the country and return back with the petition from the employer whom you will be working. This will get you a new I-94 at the POE and everything will be good. It is not adviable to keep accumulating out of status period.

Do you have a valid H1B visa in the passport? If yes, just leave the country (return all your current I-94s when you leave) and re-enter back with the petition from the employer who have decided to work and with the old valid H1B visa.

Hi Sherwin

Yes I have a valid I-94 from employer A, I stopped working for him from September month, the most recent pay stubs I have with employer A is until September, I started working for employer B from August, so I am presently with employer B (h1B Approved without i-94) and my most recent pay stubs are with employer B, if I am planning to apply a new H1B transfer with employer C, am I supposed to use employer A petition or employer B petition for transfer ?

If I am using employer A petition with Valid I -94, as my most recent pay stubs are only till September, and USCIS asks what was my status from August to December, the answer is I was with employer B and waiting on my I-290 B approval or am I supposed to use employer B petition but I don’t have a valid i-94 with them

Please explain above scenario

as you have been kindly answering all my questions from the initial phase, I would just take it as a personal suggestion and use the infromation at my own risk, what would best solution for me considering all the scenarios...

[ravikumar4869]

Amendment by Employer A or either Employer B

Shervin, thanks agian for your Valuable comments,

No, I dont have a valid H1B in my passport. your opinion seems to be good, but these days getting visa stampled at the consullate has become very tough and chances of having successful visa stamping is very low

Last two options I have

Question 1: can employer A file an Amendment saying that, I want to return back to employer A for employment after 3 months of not working with him, is this something doable if so what are the chances of this being approved and what are the consequences of it when I have a h1B extension of status next year

Question 2: can employer B file an amendment saying that I was always in valid status, because of administrative mistake they failed to submit the pay stub in the RFE response, becassue of which decision was made that I was out of status, technically I was never out of status is this something doable

Question 3 : Employer C filing a petition saying that, I was never out of status, was always in valid staus because of some mistakes made by previous employers , USCIS made a decision that I was out of status, and show them all the proofs that I was always in valid status, and file a new petiion with approvals from employer A and employer B and use the I-94 from employer A


Please advise, apart from these I dont have any other options

[shervin143]

Question 1: can employer A file an Amendment saying that, I want to return back to employer A for employment after 3 months of not working with him, is this something doable if so what are the chances of this being approved and what are the consequences of it when I have a h1B extension of status next year
>>> They cannot file any amendment. Amendment is something tha your current employer can file and not any previous employers. They have to file a transfer. The transfer is not going to get approved when you are current out of status.

Question 2: can employer B file an amendment saying that I was always in valid status, because of administrative mistake they failed to submit the pay stub in the RFE response, becassue of which decision was made that I was out of status, technically I was never out of status is this something doable
>>> That is called as MTR, which I guess they already did. It will take its own course of time and whether to wait and risk it all is upto you.

Question 3 : Employer C filing a petition saying that, I was never out of status, was always in valid staus because of some mistakes made by previous employers , USCIS made a decision that I was out of status, and show them all the proofs that I was always in valid status, and file a new petiion with approvals from employer A and employer B and use the I-94 from employer A
>>> Well, you can try that. LIke I mentioned in the previous reply, if you do that, file the application in premium and get the result within 15 days. No point in waiting for 3 months by filing it in normal case.

[ravikumar4869]

Amendment by Employer B

Shervin,

yes employer B has already filed i-290 B while a go and as you said earlier the output of i-290 B can vary anywhere from 1 to 1.5 years and I cannot wait so long, I was thinking if an employer B can file an amnedment with all the required proof that I was never out of status just like what i said earlier apart from i-290 B which is already submitted and is in process, is this something possible

Thanks in Advance

[shervin143]

You keep asking the same question again and again. I have answered as per my knowledge. I guess you should consult a good immigration attorney. When a case is rejected, you cannot file an amendment. It has to be an MTR. You can try and file one more petition (call it amendment or whatever), the chances are that petition will also get approved for consular process or it will get denied. But you can certainly try if your employer is willing to spend the moeny. Whatever you are trying to do, file it in premium and don't overstay for a long time and mess up your future chances of entering U.S.

Shervin,

yes employer B has already filed i-290 B while a go and as you said earlier the output of i-290 B can vary anywhere from 1 to 1.5 years and I cannot wait so long, I was thinking if an employer B can file an amnedment with all the required proof that I was never out of status just like what i said earlier apart from i-290 B which is already submitted and is in process, is this something possible

Thanks in Advance