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H1B extension pending- and RFE issued

Newark, NJ |
Filed under: Immigration

I am currently working on H1B, my first H1B expired on 30th sept 2008, my employer filed the extension in premium processing before 30th sept,
I did receive my new i-797 and new i-94 on oct 10th.

After 1 week uscis sent a query on my approved case- the query is related to employer.
I checked on uscis site- My EAC number which was approved now shows RFE sent on 0ct 17th.

Till today-Jan 19th the case is shown pending(my employer replied to the rfe).

My question is can I apply for h1b transfer to someother company- while the previous h1b extension is pending(even though i have approved i-797 and i-94).

Also if i apply for h1b transfer and my previous h1b extension which was approved gets denied- will i have any problem.

Since i applied for h1b transfer i will be working with the new company- so does that mean my status will depend on the h1b of the new company.

Please if anybody could answer.

The query what USCIS issued was- they wanted details of the employer- like how many people work, what is the location of work, company financial details, lease agreement,office photos. Details about me- what project I am working-what Location-my tax return. I do have all my documents with me and there are in align with H1B. My concern here in transfering to new company is- If my previous application gets denied-atleast i will be in status of some other company till i dont hear any h1b updates on their case. Since i am trying to file premium processing with the new company-hopefully within 2 weeks i should be able to get my details. Please provide information- on what I am doing or thinking is right or wrong. Again Thanks in Advance for your answers

Attorney Answers 1


You will have a difficult time getting a solid answer to this, because it's far from clear that there is one.

I don't know why your approved extension was "clawed back" - reviewed and possibly investigated after an approval was already issued. Therefore, I can't determine the likelihood that the approval will stand vs. revocation of the H-1B, and I can't predict what an adjudicating officer will see in the USCIS CLAIMS computer system should they review a change-of employer petition and enter the case number for the H-1B you present as granting you current H-1B status.

Normally, having either an approved H-1B petition or a pending application (as long as not yet denied) would be sufficient for approval of a change-of-employer petition while remaining here in the U.S. But, USCIS is obviously questioning something about the validity of the current petition. An adjudicating officer on the new change-of-employer case might determine that any issue is employer specific and approve a change-of employer case, might hold your case until a determination is made on the old case, might send you a request for evidence on the new case asking you/the new employer to supply the determination on the old case, or perhaps might do something totally different that hasn't even occurred to me. It depends on what shows in the USCIS system concerning the old case, the judgment of the officer, etc.

If the old case is denied after a new employer has sent in a change-of-employer petition for you, even here it is difficult to determine what would happen without knowing the actual reason for the denial of the current case.

I wish I could offer more certainty, but the reality here is that there are just too many unknowns - you would be making a conscious decision to take a risk by filing a change-of-employer H-1B petition before you received a definite and positive resolution on the inquiry to which your employer just responded.

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