Immigration Issues/H1B transfer denied

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Question
QUESTION: Hi I've H1 visa which is valid till 2012 and I changed the company here in US. They filed my H1 transfer and Got a RFE. The company replied the RFE but the petition got denied. The denial does not have a note saying that I need to leave the country. The company is again applying for the visa transfer. Is that valid? and what are the chances of getting the approval this time. Is this situation is new or someone gone through this situation?

Is there any way the old employer can deactivate the H1 petition of mine.

ANSWER: Hi,

There is only a 10-day grace period in H1B status. Thus, as you are no longer maintaining H1B status (I am assuming that you are no longer employed by the original H1B employer), you should depart the U.S. within 10 days of denial of H1B petition that was filed by the new employer. It is immaterial if the H1B petition does not indicate that you need to depart the U.S., as you would still be required to depart the U.S.

The new employer can again file an H1B petition, but that will not allow you to remain legally in the U.S. in the interim.

Any employer can revoke its H1B petition. You will not be notified by the USCIS when an H1B petition has been revoked.

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

QUESTION: Thanks for the reply. My company lawyer did not say that I have to leave the country. He said because my I 94 is still valid. He filed the H1 transfer petition again and they sent the papers to USCIS and they will reach them on 3rd OCT. I am still confused and not sure what to do. Please help.

Answer
I stand by my earlier answer.

When the second H1B petition filed again by the new employer is approved by the USCIS, it is likely to be approved as "consular processing" rather than "extension of status" unless the petition has recent pay stubs from the original H1B employer, and moreover assuming as well that the original H1B employer did not revoke its H1B petition.

Unexpired I-94 is helpful only if you are still maintaining H1B status, which you are not unless you are still currently employed by the original H1B employer.

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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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