H1B Visa Transfer 2012 – RFE – Extension of Stay Denied – Stamping Successful

In US Visa Stamping Experiences by Guest AuthorUpdated : 109 Comments

One of our readers shared their unique experience related to H1B Visa extension. Congrats to Sandy on visa extension and successful stamping. Thanks Sandy for sharing your experience with our readers. You can also share it here

Employer Change and H1B Transfer – USCIS H1B petition  – RFE
Hello All,
I hope my experience helps at least some of you as most of your experiences helped me.  I was working at a Company A and that company was taken over by another company, so in the process I lost my job and had to find another H1B sponsoring company. Fortunately, I got another job, who was willing to sponsor my H1B visa , so they filed a H1B petition and by the time the LCA was filed, the background check was done and the H1B was filed, I was unemployed for 3 weeks in the middle.(*I worked as a direct full time employee to company, no consultancies in the middle).

I got an RFE (query) from USCIS asking for the paystubs for those 3 weeks, my attorney and myself explained them some reasons and my H1B was approved, but my extension of stay (EOS) denied and they asked me to leave the country immediately and go to Chennai and get the H1 visa stamping done.

H1B Visa Stamping at Chennai

I left USA the next day and went to Chennai to get my H1B visa stamping (I just booked a one-way ticket as I was not sure if I would be back), nothing major asked at the consulate, they took my passport and told that my visa was approved.

Now I am again back in the USA. The whole process was so tiresome and I lost all hopes, but everything went well and I am here back in America

Hope my experience helps at least some of you here.

-Sandy

If you have any experience, please share it here

   

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Comments ( 109 )

  1. Divya

    Hi,
    I’m in great confusion. Hope you can help me out. I’m currently in company A. Got job offer in another company B. From A I already have visa for 2 yrs from now. Job offer from B is a good one but I told them that I will join only when my visa transfer is approved. So B applied visa transfer in premium but I got RFE. Now to submit the docs they saying that only when I join I will get the client letter and only then They can resubmit the docs.

    In this case i would have to resign A and if I join B with just the receipt, And if visa is rejected I will be out of status.

    Plz tell me what decision is advisable at this point of time.

    Thanks,
    Divya.

    1. Poonam

      Hi Divya,

      I am in a similar situation.
      Please advice how did you go about/share your experience.
      It would be of great help!
      Thanks.

  2. Nitesh

    Hi Saurabh,

    My H1-B is expiring in Jul-2014, my daughter has H4 which is expiring on Jul-2016 but somehow her I-94 is expiring on June-10 mine on Jul-31.what needs to be done in this case.

    Pls let me know shall i do to extend her i-94

    Regards,
    Nitesh

  3. laks

    My H1B is approved and employer is delaying stamping (I am in India)
    as something needs to be sorted out before making me travel.

    I had planned a pleasure trip in Nov 2013 thinking that I will be in
    USA in Nov on H1B. Since stamping is going to take sometime,

    1. Can I file for a visitor visa and go on a pleasure trip. I know VO
    will think that I am trying to avoid stamping of H1B though the case
    is genuine. What are the chance of B2 getting approved after having an
    approved unstamped work visa.

    2. Will it affect my H1B stamping if B2 is rejected ?

    3. If the project issues are resolved when I am on pleasure trip.. Can
    I do a COS to H1B from my visitor visa OR will I have to Return back
    to India and then appear for stamping and travel back.

    4. If yes, what are the timelines of COS from B2- H1B?

          1. vinay

            HI ,
            I have few question regarding my case you might have experinced or some thing would you be able to email me your email ID :[email protected]

            Here is my Question ,

            1)I have submitted Client letter while applying for Extenssion so that triggered big list of RFE and my Employer has filled my Employer as Computer programmer so one part of the RFE is asking whether this job requires bachelors or not ( and Asking us to provide necessary documents supporting whether this job requires Bachelors or not ) .I have client letter and all those supporting documents ( my only worry is is this sort of RFE Common ?

          2. administrator
            Saurabh

            Vinay,
            Yes, I have seen this RFE. Your employer/attorney will have to show why the position requires a Bachelors degree (H-1 requirement). If there are other people doing similar job w/ just an Associate degree, then that could be an issue. But if they have non-H-1 holders doing Computer Programmer job w/Bachelors as job requirement, then it will support your case.

            It has nothing to do w/ the client/project but everything to do w/ the position mentioned in the LCA.

  4. Ramesh

    Hi,

    I filled my response to RFE on 24th Feb, 2013 and USCIS website shows accepted on 25th Feb, 2013. Till now March 22nd, I didn’t get any response or update on USCIS website.

    1. vinay

      What sort of a querry have you received (bcoz i have received an rfe on Feb 25 i ahevnt still responded to it ).can you please throw some light explaining your RFE .it would be great if you can respond and do the needfull .so that we can discuss further on this Via Email or some thing.

  5. Prabh

    Hi saurabh
    I have a ques
    I got my H1 visa in 2009, expiry on sept 30, 2012. but filed for my transfer and extension in june 2012. and i just got reply from them saying it was denied. i have another h1 filed from another company in premium so i should have an answer from them in 2 weeks i suppose. bt my ques is will this visa be approved as i m staying illegal now since sept 30, 2012 untill feb 19, 2013. as i never thought it will be denied.
    also how long do i have to go back.
    Thanks

    1. administrator
      Saurabh

      Prabh,
      As your I-94 has expired, you should leave US ASAP. Although another employer can file for H-1 transfer, but USCIS will not approve extension of stay as the current I-94 has expired. So you should leave US, have the other employer file the H-1 and return on stamped H-1 visa. You should be fine for the period b/w I-94 expiration date and H-1 denial date. Have the documentation to show that H-1 transfer was applied timely prior to I-94 expiration date, when it was eventually denied and when you finally left US. You can also talk to an attorney about it.

      1. Prabh

        Hi Saurabh
        thanks for your reply
        I received my letter yesterday in writing abt denial and it says i have 30 days to leave.
        i have already filed for another H1 in priority
        do u have any idea how long will it take in priority to know if second h1b is accepted or denied? and if it is accepted before end of 30 days would i get my i-94 here or no?
        Thanks

        1. administrator
          Saurabh

          Prabh,
          Did you consult an attorney before filing the H-1 transfer? Did they tell you about the significance of I-94 expiration? IMO, your H-1 transfer will still be processed but will not be issued w/ I-94. You should leave US and return after getting stamped H-1 visa.

          1. Prabh

            hey saurabh
            Yes i spoke to an attorney bt wasnt sure bcoz 2 diff attorney saying 2 diff things
            first one sd that u have 180 days to stay here and yes if this get approved i have to go back to get my i-94 and other sd i have 240 days to stay here even if my h1 is expired and they might send and i-94.

          2. administrator
            Saurabh

            Prabh,
            A person has 240 days beyond I-94 expiration date, as long as they have an extension/COS pending w/ USCIS which was filed prior to I-94 expiration date.

            In your case, your extension has been denied, and new COS/extension will be filed after I-94 expiration date. So you don’t get any such period.

          3. Shil

            Hi Prabh,
            Did you get your new application of H1B approved by the USCIS. If yes was it with i-94 or without i-94. I received denial notice today and need to take an action right away.

            Thanks in advance.

  6. BMW

    Hi Saurabh,

    I was on L1 and now on H1B. My employer is not giving me pay stubs. I want to change my employer. What are the document are required to change the employer.

    What can I do to get pay stub from current employer.

    Thanks

    1. administrator
      Saurabh

      BMW,
      Are you already on H-1 status? If yes, then you need H-1 payslips and copy of approved petition from the old employer. You will have to talk to employer to get the payslips. You can say that they are required to know the break-up of taxes etc.

  7. Visa Stamp

    I am also exactly in the same situation where my extension of stay is denied but my h1b transfer got approved, so i had to come back to india for stamping. I have a question about filling out the visa application form. There is a question which states,
    “Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa? ”
    Yes or No ???

    Thanks for the help.

    1. Purvi

      I have a non profit H1b from Company A since Feb 2011 to Feb 2014 and i have it stamped on my passport till March 2013.

      I left my job in March 2012 and found other job in July and my new work place filed my H1b but skipped the part of extension of stay. and now my Approval notice came in and i have no 1 94. while filing the form they selected part A one question 4 which says to know the office or consulate office for Visa or if beneficiary need to admit section and did not ask for extension of stay bcos they thought it might take time if we ask EOS.

      Now my attorney at work place suggest me that i should just leave US and reenter on company A visa but Company B approval notice along with my offer letter and other documents that i got from company B.

      is your case also same ???? what came on your approval notice. on my notice they have mentioned if VISA required i would have to go to Mumbai consulate. and just admit to US using this approval notice.

    2. Purvi

      Hey ,
      so i have a get info from you.. did u already filled the form .. what did answer to the question you asked me.. i asked my attorney and he mentioned unlawful present means if ur I94 was expired and overstayed also means u stay longer then date valid on I 94.
      in our case we were staying out of status…. does that make sense???

      i also might have to go for stamping not yet sure??? did u already got ur visa interview done?? pls share ur experience. I would be planning to go to mumbai consulate.

      1. Visa Stamp

        Hi,

        Sorry about the late reply, i just noticed your comments. I haven’t setup a date for the stamping at Mumbai consulate yet. I am still waiting for few documents yet to send to me by the employer. My situation was like, I had a valid I94 approved till some time in 2014 with company A. I resigned from A upon the H1 transfer receipt from company B. Company A revoked my I797. An RFE was issued against company B’s petition, then replied and got denied. Got hold of company C and filed for a transfer, h1 got transferred but extension of stay (I94) was denied. It stated to go to Mumbai consulate and upon visa officers approval i can re-enter us and work for company C.

        So Hopefully to answer my question, i think this was an unlawful presence in the US. If possible you can email me your personal email address and i can reply you / give you a call (we can touch base regarding the visa application and stamping).

        Thank you very much for taking time to respond to my question.

        Appreciated.

  8. Myra

    I know not to post question here, but I’m desperate.
    Please help, I need advice….
    I’m on H1 visa. I was recently arrested on domestic violence charges which is a class A misdemeanor in Texas. I have 2 DUI’s in my record. I was asked by my company to put in my 2 week notice. The 2 weeks have passed, and now I’m out of status. The domestic violence case hasn’t been filed yet. My questions are:
    1. How easy would it be for me to find a job??
    2. How would the visa transfer process work??
    3. How would the outcome of the case effect me??
    4. What should I do??

    Thanks, in advance.

        1. administrator
          Saurabh

          Myra,
          If you are able to find an employer ASAP w/ not substantial gap b/w the jobs then it may be possible. If the gap is more b/w jobs, then most likely they will approve H-1 petition w/o I-94, which means you will have to go for H-1 visa stamping.

  9. Purvi

    Hey Saurabh,

    so here is my case. i am on H1b from company A since Feb 2011 and got it stamped from Mumbai consulate in March 2011 valid till March 2013. I left my company A position and was unemployed for 4 months. I got an offer from company B and they have filed LCA and would file H1b petition under premium processing.

    If my petition gets approved with extension of stay denied. Do i need to go back to India to get my visa stamped or i can use my Companys A stamp and get new I94 on POE.

    looking forward for your response.

    1. administrator
      Saurabh

      Purvi,
      Although you can return on A’s visa stamp, I would suggest talking to lawyer about it. Maybe stamping is mandatory as you stayed in US w/o maintaining legal status and your EOS was denied b/c of this.

      1. Purvi

        Hey saurabh,

        my attorney did not ask for EOS he just asked for change e of employer and consular processing.

        Now she tells me as i have valid visa stamped on my passport i should not go for stamping and should just take a chance and be back at POE and show them old visa with new petition.

        But my new petition clears says mumbai consulate on it??? what do you think u should do in this situation. pls comments for anyone and everyone is appreciated…

        1. administrator
          Saurabh

          Purvi,
          Under normal circumstances one can travel to US on old visa stamp (not expired) and new petition. What was stated on the new petition is a standard message.

          So it comes down whether you want to take the risk or not. Did you ask your attorney about travelling to CA/MX and returning on existing visa stamp to get a new I-94?

  10. Chandran

    Hi ,

    My application status has been moved to RFE denial. Is there a way to re-appeal or is this the final decision?

    Thanks

    1. administrator
      Saurabh

      Chandran,
      Your employer can file MTR within 30 days of the decision. Does your employer feel confident that the denial was in error and they have a strong case to overturn the decision?

      1. Chandran

        Thanks Saurabh.
        It seems there are so many denial cases against the petitions submitted by my employer and my employer feels that there are no valid reasons specified in the notice. My manager is ready to file a MTR for my case. Could you please let me the possibilities of getting through when we file a MTR?

        1. administrator
          Saurabh

          Chandran,
          Chances would depend upon the reason for denial and the information/document your employer submits in support of the MTR.

  11. Rama

    Hi Saurabh,

    I know this question was asked a couple of times, as there are contradictory answers from different sources, I wanted to confirm what is correct.

    Currently I am working for a company A on H1b Visa, valid till 30th Sept 2014. Now, I got a good offer from a company B, who are ready to sponsor for my H1b. Assuming that all went well with my new H1b and I get latest I-797, when I visit India, before Sept 2014, do I have to go for stamping again or carrying the current one with latest I-797 would be sufficient? Thanks for your help.

    Thanks,
    Rama.

    1. administrator
      Saurabh

      Rama,
      To return to US you need to have two things – an unexpired H-1 visa stamp from any employer, and an unexpired 797 petition from the employer you will be working with.

      So you can return on A’s visa stamp and B’s 797 petition if you return to US prior to Sep 2014.

  12. Akash

    If you already had a valid H1-B visa and no I94 for extension, you could have traveled outside US, returned to US with existing H1B from your old employer and issued a new I94 at POE.

    I new I94 would have been valid till the date listed on I 797.

  13. unemployedAmericanTechWorker

    It is my hope that the American People wake up to the fraud that is the H1B program, along with the variants, and demand reform to remedy the obvious abuses being practiced by the big global outsourcing firms such as Tata, Infosys and Wipro. I would like to see all work visas for professionals from India revoked immediately.

    Thanks for visiting but it’s time for y’all to go home!!!!

    1. L1Guy

      I think you should improve your skills rather than being selfish. If you do that you would sure be given a job. If you lag skills for sure employes would look for someone to work and they can look anywhere in the world. All the best. Hope you understand and improve your skills.

      1. unemployedAmericanTechWorker

        You really think its a matter of skills? Then you are naive and accepting the propaganda that the corporate machine you work for feeds you. If you dig just beneath the surface just a little you’ll see the obvious reason is monetary only.

        What comes around goes around and your boom will go bust some day (sooner than you think) …..sharpening your skills will not prevent it…..

        1. himani

          you really want all the h1-b visas to be revoked immediately?? you’d like to see the US economy completely fizzle out… :O ?? How do you think the projects will be sustained any more if all the h1-b employees leave–who will fill up their place, do you think the number of “unemployed American techies” is good enough to fill up the space for all the H1-b workers who are employed in the US companies? Don’t you think projects will be scrapped, economy will implode?? When there are no projects and escalating bankruptcies, don’t you think it will harder for American techies to get just ANY jobs? Why would you want such things for your own country and for your fellow techies ….just because you don’t have a job right now. Instead why don’t you just look out harder for work—you’ll find it 🙂 !

          1. unemployedAmericanTechWorker

            The U.S. economy was doing just fine before the importation of you mercenaries. I have seen many, many careers of very good people destroyed because of the greed of the short sighted corporate leaders in the U.S. in collaboration with the greed of corporate body shop slave masters in India. All that’s been accomplished over the last decade is the current terrible economic conditions that exist here in the U.S. All India has accomplished is importing it’s poverty to the west while making a very few of you very very rich. Sad how even though so much of the world’s economy now sends it’s money to India – so much poverty and misery still exists there. Seems greed is just as much a hideous problem there as it is here. You think the world cannot function without the work that is done there. That is proof that your young generation of educated people think much too highly of yourselves. Hope you have the ability to endure the economic collapse that will surely catch you by surprise because you think you know it all and are better than everyone else that you service….. The slave becomes the master and becomes the slave once again….. 🙂

          2. Nikhil

            Guys,
            Why are you fighting? Everything will be fine for everyone … Its a challenge to the whole world to stabilize their economy in one way or the other. Countries like India, China have tried globalization to improve their marketability because the penultimate need of the hour was to market ourselves to the world which was rightly done. At that juncture, even the USA reaped benefits by raking the moolah due to cheap labor not compromising on the skills. Wasn’t this good for both the countries? The only problem what I personally feel which caused the economic disaster for the USA is not because of importing H1B people from India/China, but because of it spending millions of dollars on the Kuwait/Syria/Afghanistan wars … Every missile released, left a deep hole in the US Federal Govt’s treasury. But, this again had its own advs and disadvs .. Oil to last for generations in USA but security issues never to be neglected. So, its really necessary that we stop discussing and fighting over this very small issue of 65000 to 80000 per annum which USA pays to each H1B candidate for the good work he does in return to the USA economy and pay more attention to other aspects which is proving to be a financial burden to USA and whole of the world. If peace dwells, economy will improve for sure.

            God Bless !!
            Nikhil

          3. unemployedAmericanTechWorker

            Nikhil,

            You should try that explanation in person to the 8.5 % unemployed (+ people who are not counted anymore) and see what kind of reaction you’d get. I don’t think you’d come away with such a nice and neat perspective as you have now. Easy to think that H1B candidates are ‘helping’ the U.S. as a whole. The only ones they are helping are the rich executives of American corporations and the rich Indian Service organization executives that take advantage of their own people (you and your compatriots). You certainly have bought into the propaganda that is spewed by both sides…. but that’s what I would have expected. Those benefitting from something are blind to what happens because they and their friends and family are doing well. They don’t see the side effect of that benefit and like you – they don’t care. So what I see is that a whole culture that has the opportunity to game a system and take advantage of another culture will do so even if it is morally wrong. That’s what I see and that’s what I’ve experienced. You may present seemingly good arguments to my points but they are merely packaged regurgitations of what your business and political leaders are hand-feeding you…. Your arguments only defend gaming the system further as evidenced by current law suits against your biggest service firms. It seems to be that at the highest levels of business and government – cheating, lying and criminal behaviors are more the norm than the exception. Are you made of the same stuff as your leaders? I would hope that you’d question your leaders and not assume that what they’re telling you is the truth in all cases. When you truly think for yourself and not parrot what you’ve been told then perhaps you’d see another point of view…

          4. Jobwelldone

            unemployedAmericanTechWorker, YOU ARE REALLY IGNORANT.

            By all the post I have read you don’t have any sense of economy, current job scenario, different job sectors and proportional unemployment in the given job sectors.

            I even doubt that you are an American, but anyways major job losses happened in Construction and manufacturing, however Indian workers are not in these sectors. Learn before you mourn.

  14. Singh

    Hi Saurabh,

    I am having H1B stamped on my passport from employer A but due to family need I was not able to travel US on decided date by employer, my employer said it will not be possible for him to wait for so long so he wanted to cancelled my H1B as Its guideline from state that if the employee is not coming then company should get H1B visa cancelled by some specified date.
    Is this true?

    2) can my H1b cancelled and that count can be used by the other candidate for the same company.

    3) he is saying that I have cancelled your visa in future whenever you plan to cone then new filing will be done. So, in this case as I was already considered in quota or as it’s cancelled then new quota will be considered.

    4) in this case if he plan to file again then I have to get restamped.

    5) why he is planning to spend his money twice in filing. Is seriously he was not having any other option left without canceling my visa as I was not able to travel now.

    1. administrator
      Saurabh

      Singh,
      1. Yes, USCIS asks employers to withdraw the petition if they don’t think they will hire the employee.
      2. It can be canceled, but cannot be used by anyone else in the company.
      3. A new petition needs to be filed, but you will not be subject to cap. So same/another employer can file cap-exempt petition for you and you will not be subject to April/October dates. Make you get a copy of approved 797 from old employer for future filing purpose.
      4. If the employer gets your current visa stamp canceled by sending the passport to consulate, then yes another stamping would be required in future. Else, you can reuse the same old stamp until its validity date
      5. He might be having fears that you will leave the employer, move to another one and then travel to US. So trying to put roadblocks by getting petition withdrawn and visa canceled (not saying it will help him much in achieving this). This is just a guess about their mindset.

      1. Singh

        Hi Saurabh,

        Thanks for your response. I talked to my employer and he said he has revoked the visa, which returns the visa to the pool. I told him that I have checked with some of my trusted experienced people in this area that even if the Visa is revoked then also I am in the Quota and if the same employee will file anytime in the year irrespective of the 2013 Quota, once I recieve the NEW approved petition then I can fly with the same stamp.

        But he says its not correct, you have to undergo fresh filing with next year quota and Fresh Stamping even with the same employer. With Old Stamp, they can send you back from the US Airport.

        Please suggest.

        1. administrator
          Saurabh

          Singh,
          You can talk to a lawyer (not the one related to employer) and get their opinion on it. However, if you have the copy of approval notice (or just the receipt number), another employer can file cap-exempt petition (aka H-1 transfer) for you in future.

  15. Raj

    Dear Saurabh,

    I find your blogs and responses very helpful in addressing particular circumstances.
    Request your kind help with my queries below.

    I am in the USA and changed my status from L1B visa to H1B last year (and my wife’s status was changed from L2 to H4) while residing in the USA itself. Since then, I have been working on approved petition (I-797 A) and now, I need to go to India for some personal reasons and hence would need to get the visas stamped on my and my wife’s passports.

    My questions are below.

    1. Could I schedule interview with the US consulate in any of their locations in India? Or do I need to schedule with the consulate that is near my permanent address (home location) in India? I used to work in Mumbai 3-4 years back and my ex-company that time got my US B1/B2 visa (2008) and later L1B visa (2010) stamped at the US consulate in Mumbai. So, I am more comfortable with Mumbai consulate. But my home town is in Rajasthan so I guess Delhi consulate would be the nearest location. Need your expert opinion on which consulate I could and I should be selecting for the interview.

    2. Could you please recommend a reputed and good attorney/law firm in India that could assist us with the whole visa stamping process, from interview application to reviewing all the documents etc. and scheduling and preparing for the interview?

    Thank you!

    Raj

    1. administrator
      Saurabh

      Raj,
      1. You can go to any consulate
      2. I don’t know any attorney in India. You can see the process on VFS site, or check blogs/forums on how to do it. It is pretty simple and lot of people do it by themselves once they have all the required documents. Your call.

      1. Raj

        Thank you, Saurabh!

        My wife is traveling to India in early September and I shall later travel around mid of November. Both of us shall go for the interview in favor of visa stamping in November when I reach India. As mentioned before, I am on H1B visa and my wife is on H4.

        I would like to know your opinion if it is fine to have my wife travel in early September and then stay in India for around 3 months before we together go for the interview in late November. Could there be any adverse repercussions of this?

        Thanks!

        Raj

  16. Deepak

    Dear All,
    I have completed my 10th and I did not completed my +2. I directly joined B.Com through Distance Education (the eligibility was 10th). I then joined MCA after completing my B.Com and achieved Distinction.
    Is there any chance that my Petition will get rejected?
    or When I go for stamping, will I face any problem.

    1. administrator
      Saurabh

      Deepak,
      If you have degree equivalent to 4 years of US Bachelors, and qualify for the offered position, then it should be fine. Else, they would issue RFE and you/employer/attorney will have to provide clarification and documentation.

  17. Sagar

    Hi Saurabh,

    Thanks for all the information you provide. I have a slightly different situation. I recently completed my Masters in Computer Networking in a reputed US University. I got an offer from Company A and I accepted it and they have filed for my H1B 10 days back and it is in process (in the initial review stage). And yes, I have not yet started working for Company A as their start date is 25th June 2012.

    But now, I have got a better offer from Company B and now I wish to join this company instead. So, will I technically have to transfer my H1B to Company B or how can it work according to you? Also, when will I be able to work for Company B?

    Lastly, I also have my EAD valid until May 2013.

    Any help from you will be great!

    Thank you.

    1. administrator
      Saurabh

      Sagar,
      You have following options:
      1. Start working for B on OPT now. Once A’s petition gets approved, ask B to file for H-1 transfer. This is possible only if A’s petition gets approved
      2. Start working for B on OPT now. Ask B to file cap-subject petition. They can do this as long as the quota is open. If the quota gets over then they have to rely on #1.

      1. Sagar

        Thanks for the info. I have following follow up questions:

        1. So it is valid to work on OPT even if A’s Petition gets approved?
        2. And I looked around, but could not get a simple answer, what exactly is cap-subject petition?
        3. I have to go back to India in Dec ’12 and Jan ’13. Do you think this issue will cause problem for me to travel to India in Dec ’12 / Jan ’13? In other words, how much time does it normally take for H1B transfer?
        4. Is it okay to reject Company A this late? (I have already done my I-9 via Company A)

        1. Sagar

          Also, I forgot, except letting Company A know I will not be joining, is there any other formality I have to carry out (in terms of H1B visa only) like can Company A ask for money from me for H1B petition as I would not join them even after they filed for one?

          Lastly, in the worst case, if H1B from Company A does not get approved and the quota closes, is there any option like applying for H1B in April 2013 and working on OPT until then?

          Thanks for your help! 🙂

        2. administrator
          Saurabh

          Sagar,
          1. Yes, but until Oct 1 (which is when H-1 will kick-in as part of COS)
          2. They are subject to quota. They can be filed on or after April 1, and have start date of Oct 1 or later.
          3. Regular processing can take 2-6 months, while premium processing will be done in 15 calendar days. If RFE is issued, then it can take longer
          4. You can reject them, but then they might withdraw the H-1 petition.

          A can sue you for business losses (reputable employers don’t do that).

          In case A’s petition is denied, you will remain on F-1/OPT until May 2013. So employer can file H-1 in next year’s cap and based on the filing you will be eligible for cap-gap (you can search about this on USCIS website).

          1. Sagar

            Thanks Saurabh.
            I hope Company A does not sue me then. It is a very big company. Have there been previous cases in our knowledge where big reputable companies have sued new grads for business losses? Or is it rare?

          2. administrator
            Saurabh

            Sagar,
            I have seen Indian employers going after the employees, but I haven’t seen many US (non-desi) companies going after employees for business losses. In either case, you can talk to a labor attorney as well to make sure you are covered.

            I don’t know which employer to join as that’s a personal decision and I am not in your shoes to know the actual situation/offers/growth prospects etc.

          3. Sagar

            Hi Saurabh,

            Also, you might have guessed that I am having a hard time taking this decision. If I may, what would be your suggestion in this case? Company A or B? I am looking for some help in deciding what I should do as it is my first full time job after MS.

  18. Raj

    Dear Saurabh,

    I find your blogs and responses very helpful in addressing particular circumstances.
    I was wondering if you could kindly provide your expert opinion regarding my situation below.

    I am on H1-B visa that I got afresh in Dec 2011 through a small IT consultancy firm and have been working on contract for a client since then. I have been looking for full-time employment lately and have received an offer also from a reputed US based organization and they are ready to sponsor my H1-B visa transfer.

    In the questionnaire for H1-B sponsorship and personal information form seeking Immigration related details from me, they have asked if I have any travel plans outside the USA in the next 6 months and anticipated dates of travel and destination. My joining date would be June 25, 2012 and I do have a plan to travel to India in Nov-Dec 2012 due to certain personal inevitable reasons.

    I am not sure of the exact purpose and intent behind asking this information and if sharing this information could go against my sponsorship or offer due to any reasons unknown to me.
    Request you to please guide me and let me know what could be the intention of the company behind looking for this information and if it would be safe to share my travel plan with them at this point of time. I have received the offer today only and would have to provide my acceptance in one business day.

    Thanks!

    Raj

    1. administrator
      Saurabh

      Raj,
      When the petition is pending, and if the candidate travels outside of US, then the petition would be approved w/o I-94. This means the person will have to enter US on stamped H-1 visa and rely on the I-94 issued at the PoE. As the petition processing can take up to 6 months, companies (or their attorneys) would like to know this so that they can plan accordingly. I think that is the reason in your case.

  19. Inder

    Hello Saurabh,

    Thanks for your valued advice. I have a few questions to you pertaining H1 transfer.

    1. I was working for Company A until Feb 10 2012 (pay stub till this date) – my visa with this company was approved in April 2009 effective October 1 2009 ending August 2012. Visa stamped in May 2010

    2. Recently I changed my employer to Company B (they filed for my H1 transfer, reciept notice received Jan 3, 2012). Employment start date 02-13-2012. Currently, there is an RFE received from USCIS, the transfer process is ongoing.

    3. I am planning to switch my employer to Company C, can I do so given the that my H1 for the new company is not approved and is at RFE stage ?
    4. Since my existing visa stamp for Company A is still active (in terms of being stamped), is there a possibility that I can go back to my previous employer ?

    Your advice is much appreciated.

    Thanks,
    Inder

    1. administrator
      Saurabh

      Inder,
      C can file the H-1 transfer by submitting:
      – copy of A’s approved petition
      – copy of B’s transfer notice
      – payslips for last 3-4 months from A and B

      You can go back to A as long as they are willing to hire you back. A’s visa stamp doesn’t help here, but their petition is the document which allows you to go back to them.

      1. Inder

        Saurabh,

        Thank you for your reply. I have another question for you.
        I am working for my current employer A since Feb of 2012. I am still awaiting response from USCIS for an approval. They had sent an RFE and was responded back in June. I am still awaiting response.

        I have a new job offer and employer B has filed my visa petition in premium processing. I have a receipt notice dated Tuesday August 28.

        Employer B has been pressurizing me to join asap. Is it advisable to join employer B on a pending approval from employer A ?

        Thank you for taking time to advise us all the time.

        Inder

        1. administrator
          Saurabh

          Inder,
          This can be tricky. If B’s transfer gets denied, then you have to immediately file for another transfer or go back to A. If you are confident that B’s petition will get approved quickly (as it is PP), then there is less risk involved.

          You should also check w/ a lawyer about what happens if you join B and A’s petition gets denied prior to B’s approval.

  20. Chandran

    Hi Saurabh,
    I received RFE for my H1B petition in Mar’12, however there were issues in the RFE document with incorrect file number. Later my employer worked with USCIS and corrected the same. My employer is not willing to respond the RFE, since most of the cases are getting rejected in recent times. Can you please let me know the possible cases of RFE rejection?
    (Mine in upgraded to premium processing)
    Thanks.

    1. administrator
      Saurabh

      Chandran,
      There was various reasons for RFE rejections and vary from case to case. You should check your reason w/ your employer

  21. Tsvetan Chevganov

    Hi Saurabh,
    I am currently on H1B and I got an offer from a different company and they will transfer my visa. I just got my H1B approved like a month ago. The new employer filed the LCA with an end date that is sooner than my current H1B end date. So, in the petition for basis of classification ‘change of employer’ is checked. But my new employer and I were unsure if the requested action should be ‘extend of stay’ or ‘amend the stay’. It is not really an extension as the intended end date of the new petition will be less than the current expiration day of my current H1B.
    Your feedback will be greatly appreciated!
    Best regards,
    Tsvetan

    1. administrator
      Saurabh

      Tsvetan Chevganov,
      It should be change of employer. Extend of stay is when the same employer files the subsequent petition.

  22. sunny

    Hi
    I got the RFE for the reason asking my employer for the Job ad and description & want to verify that a bachelors degree is minimum reqd for the job.

    Please anyone please help to which documents should i sumbit to prove it. My company is very small IT company.

    Can you anyone please give me what documents they have sumbited as proof, for privacy take all the name etc. I need the points and material. it will help me a lot.

    please please please….. email: kakamunna1978 at gmail dot com

    Sunny

  23. Krishnan

    Hi Saurabh,

    I have H1-B visa and my extension is going to be filed.
    My question is if I got to India I have to appear for personal interview but if I come back to US and move to different company (Visa Transfer) then when I go back to India next year do I still need to appear for personal Interview.

    Making it simple:
    If I have a valid Visa then is it necessary to appear for personal interview when I move to different company?

    Thanks
    Krish

    1. administrator
      Saurabh

      Krishnan,
      Once you have a visa stamped in the passport, you don’t need to appear for another stamping (even after changing employers) as long as the previous visa stamp is valid.

  24. swetha

    hi Saurabh,

    Iam planning to apply h1b visa from two employers for 2012 quota .

    This is my first time h1b visa . Will there be any problem if i file h1b from two employers ?

      1. shilpanjali

        Swetha, this is absolutely wrong answer. You should not apply 2 H1b applications simultaneously when you are applying for first time. Check with you attorney first.

        1. administrator
          Saurabh

          shilpanjali,
          And how do you know it’s a wrong answer? USCIS prohibits same employer from filing multiple petitions for the same applicant. They do not prohibit different employers from filing the multiple petitions for the same applicant.

        2. Ranjan

          Shilpanjali, OMG! You said it is absolutely wrong! Absolutely? Hey, I think you are naive and young.; for your own benefit, please don’t talk when you don’t know. The advice to check with attorney is ok. However, as a respect to Saurabh, whose page I am in first time, I must say that he is knowledgeable. Knowledge is the key. Great job Saurabh.

  25. Sudhindra

    Hi Sourabh,

    i worked in U.S. from 2007 Jan to 2011 Jan and then moved back to India due to my paren’s health conditions. my I 140 was approved and my H1 was extended till Sep 2012 when I left U.S. After moving back to India , I joine one of the MNCs and worked for 1 year. Now, My current company in India transferred my H1 and I got the I 797 approval. I need to go for a visa stamping at Chennai as my visa stamping is expired. What are my chances of getting visa stamped?

    Thanks,
    Sudhindra

    1. administrator
      Saurabh

      Sudhindra,
      It will depend upon your profile, employer credentials, your qualifications for the offered job, adherence to immigration laws before you left US, client/project information and adherence to employer-employee relationship.

  26. Kumaresh

    Hi Kumar,
    Request your expert advice on the 221g that I was recently slapped with at the Chennai Consulate for my H1B. To give you a brief background, my employer is an IT consulting company doing business in consulting, software development at offsite (his premises) and IT training.
    Down below, I am giving the 4 items that I have been asked for and the understanding that I have about those. Humbly request you to please correct and guide me if I am wrong.

    1) A copy of the petition with all supporting documents as filed to USCIS
    My employer will send this to me

    2) A copy of the contract between the US Employment agency (petitioner) and the job site (the location where you will actually work)
    This is the CLIENT CONTRACT LETTER I already have. Its clearly mentioned on the client letter, my designation, place of work, my roles and responsibilities, the duration of the project and moreover, it also states that a contract has been signed between my employer and this client and its required that I work at my employer’s place for this project and report to my employer for this project. This will be a 40 hr/week work.

    3) A letter (on letterhead) from the personnel department at the U.S. job site stating that there is a vacancy for you.
    This is my MAJOR AREA OF CONCERN since I don’t know what’s the exact format. Does this mean that Client company is looking for so and so skilled resource (Some thing like giving an Ad on their portal or in job site that there is an opening at their place). I think, during the filing the lawyer might have taken care of this. I also feel, the HR of the client firm should be able to give it since if I look at the career section of client firm in their website they already have the position of a “Web Application Developer” listed as a position they are looking for and I fit into this role since my job description is matching this. Moreover, they are looking for a FULL TIME position, since they couldn’t find one from long, it can be taken as they have hired a TECHNICAL CONSULTANT that is me, from is what the client can mention on their Letter head.
    Is my understanding right Kumar? Is there any specific format to be followed while giving the consulate this information? Do please let me know the format if any and is this to be given on the CLIENT letterhead?

    4) A letter from the client company sponsoring the project and the copy of the contract between US based petitioner and the client company stating the timing, terms and agreement for your project.
    This is the Purchase Order mentioning all the details that have been asked.

    Everything went well in the interview, I had a valid client letter, a letter from my employer stating that my position is still open (since I had filed on an I-94 when I was in US on L1 but had to come back to India due to personal reasons). I had to start on this project from Oct 1st but couldn’t and I went for an interview on April 6th. This was the point where I got stuck in the interview as my employer had not sent the PO.

    Thanks a ton
    Regards
    Kumaresh

    1. administrator
      Saurabh

      Kumaresh,
      RE 1,2, 4 you need to submit the documents you have mentioned in the post.

      RE 3, there is no set format. You can ask the client to issue a letter which covers the information you have mentioned along w/ print-out of their job opening and the fact that they have converted this position from FT to contractual. Yes, it should be issued by the client on their company letterhead.

    2. Shravan

      Hi Kumaresh, Do you have any middle vendors ? or its just your employer and client.
      And about no 3 above, I have a letter similar to that, I can help you with. You can reach me at the mail sravanouct at gmail dot com Thanks!!

      1. Kumaresh

        Thanks a lot Saurabh for your reply..

        Shravan, there are no middle vendors. Its just my employer and the client. I will email you now.. Thanks so much for being so generous and coming all the way to help me .. Truly obliged… By the way, were you also asked to submit the same thing , point 3?

  27. Raj

    Dear Saurabh,

    I find your blogs and responses very helpful in addressing particular circumstances.
    I have a couple questions below with respect to my visa status and plans and would be grateful if you could provide an expert opinion.

    I came to US in Mar 2010 on L1-B visa through a leading Indian IT company ‘A’. In Dec 2011, I got my status changed to H1-B by filing a fresh H1 through a very small IT consulting company ‘B’ and started working for a client since the beginning of the year 2012.

    I had received my W-2 for the years 2010 and 2011 from company A and I have filed my tax returns as well and received the returns for these 2 years. Since my pay-stubs from company B started in 2012 only, I would not receive any W-2 from company B until the beginning of 2013.

    I need to go to India in Oct-Nov 2012 for an unavoidable personal reason for 2-3 weeks. Since I would need to have H1 visa stamped on passport, I am worried for not having W-2 from my current employer company B by that time and also for not a good reputation of my employer (I found this recently) with tax payments to US government (IRS had caught this last year and even punished the employer with imprisonment and imposed fine).

    For these reasons, I am now interested in a full-time employment (not IT consultancy) with some good organization. I have come to understand that being a full-time employee, one has very feeble to no chances of having issues during the H1-B visa stamping process even if the recent W-2 has not been generated (also, requirements like Client Letter, SOW etc. are not applicable).

    Request help with your opinion on the below.

    1. Once in full-time employment, would I still need to wait till the next year for the recent most W-2 from my full-time employer before I could travel to India for stamping?

    2. In case I am unfortunately not able to find another job by the time I have to travel, could not having a W-2 from company B for 2012 (though I have W-2 for 2010 and 2011 from company A and filed my tax returns) and the poor reputation of company B regarding tax payments have a potential negative impact on my visa stamping?

    Thanks!
    Raj

    1. administrator
      Saurabh

      Raj,
      You have a correct understanding of the complications of working for non-reputable firms and benefits of working for credible ones.
      1. W-2 is not mandatory. W-2 is required only if you have worked for that employer in the past year. Otherwise, it is good enough to have just the payslips.
      2. W-2 will not impact the outcome assuming you have payslips from B covering all of 2012 until your travel out of US. However, their reputation can impact the outcome of the stamping.

  28. Singh

    Hi Saurabh,

    a) Currently I am working in India. A sponser company from US has filed my H1b Visa in 2012.
    b) I got my Visa approved and got it stamp from Delhi Consulate.
    c) Now, I am not able to travel US right now.
    d) Sponser is saying that they are revoking/retracting the Visa.

    1) Does this mean after revoking, I will be having no Visa and in future if I need to go US for work then I have to go through the whole process (filing, lottery, approval, visa, etc.) again.

    2) Or will it go under Cap exemption whenever I find a new sponser who is ready to transfer my visa.

    1. administrator
      Saurabh

      Singh,
      It’s (2). Keep a copy of approved 797 w/ yourself and later on, another company can use it to file cap-exempt petition for you. If your current visa stamp in the passport (from old company) is not expired or canceled, then you don’t need to go for another stamping once the new approval comes through.

      1. PS

        Saurabh Sir,

        Can you intrepret this, is it relevant for my case and if it is then what you suggested is correct or not?

        INA 214(g)(7) states:
        ——————————————————————————–
        Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A) shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed.

        ——————————————————————————–

        1. administrator
          Saurabh

          PS,
          Yes it is applicable. That is why I said (2) i.e. employer can file cap-exempt petition for you.

          Also, please avoid calling me Sir. I am still too trivial for such salutations.

  29. Anil

    Hi Saurabh,
    So this is my situation.
    I was terminated on my H-1B visa on Feb 3rd 2012. My severance was until Feb 29th 2012, so I took the liberty to wait till Feb 29th 2012 until I applied for COS to B-2 to keep my status in the USA.
    If I do get a new job now and H-1B petition approved, but am asked to return to India to get the H-1B stamp [B-2 to H-1B], would it be an issue.
    I think this is about the larger question that are B-2 to H-1B transfer visa stamps done easily, or does the Consulate look at it as being unethical?
    Thanks for your great site.

    1. administrator
      Saurabh

      Anil,
      USCIS will take a deeper look to know why you moved to B-2 and then back to H-1. If they determine it was misuse of B-2 visa, then they will deny the COS, but can still approve the H-1. In this case you will have to go for H-1 visa stamping. Check w/ an attorney if what you did will be considered as misuse of B-2 or not.

  30. Rahul

    Hi Saurabh – I have an L1 (Blanket) and will be in US from May. I plan to try and convert this to an H1-B and assuming i find a willing sponsor, here’s a couple of questions.

    Let’s say ‘A’ is my current employer and ‘B’ is my sponsor. ‘A’ calls me back to India after the process of conversion from L1 to H1 (with ‘B’) starts and i have to re-enter US….

    1. Before my H1-B is approved. Can i enter the US at this stage? If yes, using which visa?

    2. After my H1-B is approved but before the H1-start date (October 1). Can i enter the US at this stage? If yes, using which visa?

    3. After my H1-B is approved and after the H1-start date (October 1). Can i enter the US at this stage. If yes, using which visa?

    Thanks in advance!

    Rahul

    1. administrator
      Saurabh

      Rahul,
      1. No, you cannot. If A wants to send you back on L-1, then you can enter on L-1, but otherwise you cannot.
      2. Same as (1)
      3. You can go for H-1 visa stamping and enter on that visa. L-1 answer from (1) also holds true.

      1. Rahul

        Thanks for the response Saurabh…

        Need some more help on (3) above….so after October 1 (H1 B start date), i can enter US either on L1 or on H1? Can i hold 2 valid visas at the same time?

        1. administrator
          Saurabh

          Rahul,
          You will be going for H-1 visa stamping. At that point, the VO can decide to cancel the L-1 visa or let it remain (it’s their discretion). You can then enter on one of the visa stamps remaining in the passport, ensuring you still satisfy requirements for that visa.

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