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H1B Transfer Denied, how long can I stay in the country?

Arlington, VA |

I had an approved H1b and then I transferred to a new company and worked for them while the application was pending. Got an RFE to provide evidence that my job is a "specialty occupation". The lawyer did not do a good enough job to convince the USCIS of my actual duties and my job is a specialty occupation so they denied it. Now, my employer has taken me off payroll and said they will think about what they want to do - Motion to Reconsider or re-file - and get back to me next week. How long can I legally stay in the country?

Also, is MTR a better option or re-filing? Please give me as much detail as possible and let me know if I can provide any more detail.

Attorney Answers 3


  1. Best answer

    Don't be so quick to blame the lawyer.

    You haven't given us enough information to believe that you really do qualify for a specialty occupation.

    Take all the papers to a different attorney and get a 2nd opinion.

    By the way ... depending on the wording of the denial ... you may need to leave the US TODAY!!!

    Franco Capriotti - Senior Legal Counsel - Capriotti International Law – 503-803-0055
    SKYPE CONSULTATIONS AVAILABLE - franco@capriotti.com - www.capriotti.com
    We are not geographically limited ==> Our licenses allow us to represent people worldwide.

    IMMIGRATION LAW PROFESSOR for 10 years -- LEGAL DISCLAIMER: This answer is offered for informational purposes only. It does not constitute an attorney-client relationship.


  2. Zero days.

    What can be done depends on the reasons for the denial and whether those reasons can be overcome.

    Your employer needs to retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise them, and handle the case.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not constitute legal advice, as not all the facts are known. You should retain an attorney to review all the facts specific to your case in order to receive advise specific to your case. The statement above does not create an attorney/client relationship. Answers on Avvo can only be general ones, as specific answers would require knowledge of all the facts. As such, they may or may not apply to the question.


  3. How long you can stay, as the other attorney mentioned, depends on the decision itself. You could be out of status as of the date of the decision, and if you fail to file a motion to reopen/reconsider, you would be required to leave immediately. If you do not leave and your employer does not file a motion to reopen/reconsider and you stay in the U.S. for 6 or more months you will face bars to reentry.

    You may have other options, but I would advise your employer seek out another attorney for a second look at the decision, and the employer's options and your options separately from the H-1B filing.

    We are located in Arlington, and would be glad to discuss it with you.

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