H1 Transfer..Consular Processing !!

[rockey123]

Hi,

I have filed for H1B transfer in December 2011 and received a RFE asking for previous months paystubs and all W2's. (could not attach it with the application as I had not received it from my previous employer at that time).

Since the paystub dates are not matching they are not proper/ will have issues if we provide them to USCIS according to the lawyer.

So instead of going for extension of stay the lawyer is of the opinion that we should apply for counsular processing instead of extension of stay since I am anyways planning a trip to india shortly after. That way I can get it stamped while coming back and start working again.

Should I apply for counsular processing directly, I also heard that if there is an issue with extension of stay application then its automatically converted to counsular processing.

Please Advice

Thanks in Advance...

[shervin143]

Well, without proper pay slips, you are considered out of status on H1B. When you are out of status, the transfer will either get denied or get approved for consular process. Any time spend in U.S working for the new employer will be considered as illegal employment. It is because of this risk, it is not advisable to join any new employer with just the receipt notice. If the previous employer did not pay you properly, the file a complaint with DOL and attach a copy of the complaint while responding back to the RFE. The transfer can get denied. If the petition gets approved for CP and if the VO asks you the same, be prepared to answer them.