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Immigration Issues/H1B transfer Approved without I-94, I-290B filed

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QUESTION: I was in F1 Status OPT( Optional Practical training) untill December 31st 2010, got my first H1B approved on May 31st with company 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 additional 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 submitted I-290 B with missing pay stubs. ( it has been 75 days I have submitted I-290 B but haven't 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 and valid LCA which is not yet cancelled, can I go back to Employer A and start working for him ? is my Employer A h1B petition still 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 Employer 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.

Question 5 : 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 B carelessness he forgot to attach paystubs with RFE, is there a chance of this being working out ?

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

ANSWER: Hi,

You cannot remain in the U.S. legally based on pending appeal.

You would have been able to continue to remain legally in the U.S. if you had continued to work for Employer A throughout, or at least joined employer A again immediately upon receiving denial of H1B petition filed through Employer B.

When you depart the U.S. (as soon as possible), you can only obtain visa stamp (whether in name of Employer A or B) at a U.S. Consulate in your home country.

There is no basis on which you can continue to remain legally in the U.S. or to work for Co. C.

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

QUESTION: Ajay, your answers are very helpful, Thanks for your time, just wanted to get some clear idea on somethings

I have an approved H1B Petition with Employer B, I don't have a valid I-94 attached to it, where as I still have a valid i-94( valid until Aug 2012) and approved H1B with employer A

I am just trying to understand here, apart from going back to home country for stamping as this has become very tough these days to get aren't there any other workarounds to solve the above scenario

your feedback is highly appreciated

ANSWER: Hi,

It would have been OK to go back to Employer A if there was no violation of status in the interim. Thus, although it was OK to work for Employer B upon the filing of its H1B petition based on H1B portability rules, you would not have been authorized to be employed by Employer B starting from the date of denial of the H1B petition. Going back to Employer A at this time (after a significant amount of time has passed in working for Employer B after the denial of the H1B petition) is probably not enough to reinstate you in H1B status. We say probably, because we want to be conservative in our assessment. The following may be helpful, although it is for a different scenario: www.h1b1.com/concurrent.htm

You may try filing through Co. C and attaching recent pay stubs through Co. A when Co. C files for you (preferably through premium processing, so that a decision is received as soon as possible). If the petition is approved through Co. C and you are granted extension of status, so that an I-94 is attached to the bottom of the H1B approval notice, then you can probably consider yourself lucky and continue to remain legally in the U.s. Similarly, if Co. A's H1B petition is about to expire within 180 days, have Co. A file an H1B petition through premium processing. If granted extension of status, you are OK.

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

QUESTION: Ajay thanks again for Prompt response.

If I am using Comapny A petition with Valid I -94 and applying for H1B Transfer through Comapny C, as my most recent pay stubs are only till September with company A, and USCIS asks what was my status from August to December, the answer is I was working for company B and waiting on my I-290 B approval, will this be defendale reason ?, and even though Company A is ready to file an H1B petition and I was not woking for them from August to December what should I answer if USCIS asks what was my status between August and December.

Please advise

Answer
It is a good idea to submit at least a couple of very recent pay stubs from Co. A when Co. C files for you.

Hopefully the USCIS will not ask about your employment status from Aug. to Dec. If the USCIS asks this specific question prior to approving H1B petition filed by Co. C, there is no suitable response that will result in grant of extension of H1B status with new I-94 attached, and you should then definitely prepare to depart the U.S.

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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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