Immigration Issues/reg F2 and H1

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Question
QUESTION: HI Ajay,

Went for h1 stamping in December 2007, got 221g to submit all petitioner docs(particularly asked for project document , client details).
Submitted the docs on Feb 19th 2008.
Got H1 refusal letter on 19th April 2008.Below is the refusal letter description,

“Based on the documents you have submitted to us, and the information elicited in your interview with an American Consular Officer, we are not able to issue you an H-1B temporary work visa, because:

Your petitioner does not appear to be either able or willing to provide qualifying employment in the United States in accordance with appropriate laws and regulations.

In accordance with United States law and Department of State guidelines, action on your case has been suspended, and the 1-129 Petition for a Non-Immigrant Worker filed on your behalf will be returned to

the United States Citizenship and Immigration Services (USCIS) with a memorandum explaining the facts of your case as presented to us at the time of interview. The U.S. Consulate in Chennai is no longer handling your case, and will be unable to give you any information on the status of your petition.

For your information, your visa was refused today under Section 221 (g) of the Immigration and Nationality Act (INA). Essentially, this section states that a visa cannot be issued to anyone whose application does not appear to the Consular Officer to meet the requirements of the INA or of the regulations there under.”

My QUESTION IS -
1. My husband stays in US on F1, will i have any problem in getting F2 bcoz of this??
2. Once i come to US on F2, can i apply for H1 transfer to a different who will be ready to take up my case and provide employment....Is this transfer possible since i ahve approved H1??

Please let me know. Thanks a ton for the advice.

ANSWER: Hi Rashmi,

You should be issued F-2 visa by the Consulate, since the reason for H-1B visa denial was due to lack of cooperation by the H-1B employer, and not because of any falsehoods that you made regarding, for example, your educational qualifications.

Once you enter the U.S., another company can file an H-1B petition for you, but you will be subject to the H-1B visa cap, as the new H-1B petition will not be considered to be a "transfer"--you can only request change of status from F-2 to H-1B, and not H-1B transfer.

Regards,
Ajay K. Arora, Esq.
www.h1b1.com



---------- FOLLOW-UP ----------

QUESTION: Hi Ajay,
Thanks a ton for the response.
But cant i get the existing H1 transferred to a different employer after i goto US on F2?....like without the new petetion cant i use the existing approved petetion(ie of 2007), since the refusal says its a probelm with petetioner?......or is such a transfer possible/not possible.

One of the employers is saying not to go for F2, but they can directly do the transfer in India itself bcoz otherwise they might redirect me to goto Chennai for H1 stamping later.

Please clarify.

Thanks
Rashmi

Answer
Hi Rashmi,

The prospective employer is correct. If the new employer files an H-1B petition for you with the USCIS (you will not be subject to the visa cap), upon approval you can apply for another H-1B visa stamp at the Consulate in the name of the new employer.

In your initial question, I had assumed that you wanted to enter the U.S. at the earliest in order to join your husband, and then the appropriate visa to apply for would be F-2 since your husband is on F-1. But if you have a willing employer at this time, upon USCIS approval of the new H-1B petition you should receive H-1B visa stamp by the Consulate in the name of the new employer.

My earlier email had an error regarding being subject to the visa cap. The revision is that you are not subject to the visa cap again if another company files H-1B petition for you.

Regards,
Ajay K. Arora, Esq.
www.h1b1.com

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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