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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

Posted

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.

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10 comments

Asker

Posted

Not being quick at blaming the lawyer .. Reviewed the application, rfe response and spoke to the attorney.. Definitely not her finest hour.. Blame game isn't going to help so I'll get to the essentials.. Mine is an accountant position with work that requires at least a bachelors degree if not some experience in th field.. If its not a specialty occupation then maybe a lawyer with 37 years of experience should have let the employer and I know.. She basically copied pasted the list Of my duties my boss provided who has no clue about immigration so that shouldve been put in a way that accurately describes specialty occupation; more like " when in rome do what the romans do" to write what the reader wants to read..now uscis considers my job that of a bookkeeper which is a complete antithesis Of what I do.. Ps already consulted and my original attorney who got my first h1 approved and he has the same opinion that this wasnt the best work.. My initial petition was approved and we are talking about a job with less complex responsibilities and with a company less established so obviously there's something missing in the equation .. The notice says there's 33 days to file an appeal but nothing about my status.. Hope this helps.. I'll be happy to provide more info

F. J. Capriotti III

F. J. Capriotti III

Posted

Why aren't you going back to re-hire your 'original' attorney? I think you would be wise to do so.

Asker

Posted

That's what I'm trying to do but that's not my decision, the company has to make up their mind

Asker

Posted

That's what I'm trying to do but that's not my decision, the company has to make up their mind

Asker

Posted

That's what I'm trying to do but that's not my decision, the company has to make up their mind

Asker

Posted

That's what I'm trying to do but that's not my decision, the company has to make up their mind

F. J. Capriotti III

F. J. Capriotti III

Posted

Actually, that might not be completely true .. you have the power to open up your own check-book. Yes, there are limitations on how much you can pay .... in the beginning.

Asker

Posted

Yep I'm aware and I've put that offer on the table to the employer too since they are the ones who will be filing a motion or a new petition. Can I stay while it is in motion to reconsider status? Or a new petition?

Asker

Posted

Yep I'm aware and I've put that offer on the table to the employer too since they are the ones who will be filing a motion or a new petition. Can I stay while it is in motion to reconsider status? Or a new petition?

F. J. Capriotti III

F. J. Capriotti III

Posted

I understand that 'staying' is the BIG question that you want us to answer ... sorry, we can't confirm, or deny, without seeing all the paperwork. No two cases are as identical as you may think. With that said, the 'safe' and 'basic' rule is to leave now, today and wait in your home country for things to get sorted out. Otherwise, you need to have an attorney hired immediately ... as you can see ... many of us work on Saturdays ... it is still early enough for you to make phone calls & hire someone. NOTE: You can hire an attorney to represent you personally and need not wait for the employer to consider the offer that is on the 'table.' This personal lawyer/adviser can give you guidance on whether or not it makes sense for you to stay, or leave.

Posted

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.

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1 lawyer agrees

Posted

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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