H1 on RFE with I-94 expired

[manny2812]

Hi,

My H1 was up for renewal in Oct last year (10/30/11), and the I-94 expiry date was 11/05/11. My employer A filed for an extension on Sep 4, 2011 in regular processing, and I got an RFE in January 2012.

My question:

Can I have a new employer B file an H1?
What happens if the H1 filed by employer A gets denied? Is that the end? Or do I have any options?

I've heard if Employer A visa gets denied and employer B gets an approval, I'll have to travel outside the country to get consulate approval?

Thanks a bunch.

[shervin143]

Can I have a new employer B file an H1?
>>> Yes and it has to be a bridging petition. Search and read the posts on bridging.

What happens if the H1 filed by employer A gets denied? Is that the end? Or do I have any options?
>>> If it gets denied, then you should leave the country immediately. Any employer can file a new H1B petition using the CAP from your expired H1B approval notice and request an immediate start date. You can return back on a valid H1B petition for the new employer along with a valid H1B visa and start working again.

I've heard if Employer A visa gets denied and employer B gets an approval, I'll have to travel outside the country to get consulate approval?
>>> That is correct when the second petition is filed as a bridging petition.

[manny2812]

Thank you for your reply. The query was answered a few days ago. I had one question - just for my information sake.

In case a denial happens, am I allowed to stay in the country in case the employer decides to challenge/contest it? For example, if I get a denial on Mar 15, can I stay between Mar 15 and Apr 1, if the employer sends the paperwork appealing the denial on Apr 1? How long can I stay in this case 2 weeks? a month? or not at all?

[shervin143]

In case of denial an MTR can be filed by the employer. You can stay, but you cannot work. MTR will take 1 to 1.5 years to get a decision. If the MTR gets denied, then all the time that you have stayed in U.S after the I-94 expiry date will be treated as illegal stay. If the illegal stay is more than 180 days, you will get an automatic ban of 3 years. If it is more than 365 days, you will get an automatic ban of 10 years from entering U.S. Also, if you leave the country inbetween, then the MTR if approved will not come with an I-94 and even in that case your stay past the I-94 expiry date will be considered as illegal stay. So you have two options.

1) File the MTR and wait in U.S until you get a decision. It is a big risk. If teh MTR gets denied or if you leave the country inbetween, then all the time spend in U.S after your current I-94 expiry date will be treated as illegal stay.

2) Better option: Leave the country immediately and return back on a new H1B petition or wit till the MTR gets approved and then return back. No point in stayinbg in the country when the MTR is filed as you anyhow cannot work.