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H1 - B transfer denied while in marriage - based AOS - status ?

New York, NY |

TIMELINE : 1 ) I had a valid H1 - B status with employer A 2 ) I filed for H1 - B transfer with company B and started working with them immediately ( October 15 , 2012 ) . 3 ) Employer A canceled my H1 - B upon resignation ( October 15 , 2012 ) . 4 ) I filed for family - based I - 485 / I - 130 through my spouse ( January 2 , 2013 ) . No AP / EAD yet . 5 ) H - 1B transfer with Employer B was denied after RFE ( February 15 , 2013 ) QUESTIONS 1 ) What is my current status ? 2 ) Have I accrued any illegal presence whatsoever ? 3 ) Should I open an MTR ? 4 ) Can I continue to work for Employer B or should I quit until I receive an EAD ? I will call an Attorney Monday , but I am worried and would love your thoughts . . . John

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Attorney answers 4

Best Answer

1. Relax and take good care of your USC spouse. Everything is now riding on that spouse's petition on your behalf. Your current status is that of an "adjustment of status applicant". According to USCIS policy this is not status if ultimately denied (it will not if you remain married until grant of green card.)

2. You don't care even if you did. That makes no difference and has no adverse consequences whatsoever to marriage-based adjustment applicants.

3. Again, relax and re-read my answer to 2) above. You don't need to waste your time, money or energy with such useless things as an "MTR" in this instance.

4. continue working. Unauthorized employment has no adverse effect on marriage based green card applicants.

Now do you understand that you must take real good care of your USC wife?

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


Dear John:

My answer is general in nature and should not be construed as advise for your case as I have not seen any of the docs or filings. However, since you filed your I-130/I-485 package you cannot accrue ULP, because you were always in status throughout the whole process and the H-1 b denial came after the filing of I-485. If your I-130 and I-485 is approvable you have nothing to worry about-I am just curious why the H-1b transfer was denied


You are now out of status. You cannot continue to work legally until you receive your new EAD. However, if you do continue to work, you will not get in any more trouble than you could be for being out of status. Additionally, working without permission is essentially excused when you file for adjustment based on marriage to a US citizen.

The answer provided here is general in nature and does not take into account other factors that may need to be reviewed for a more precise answer. You should consult with an immigration attorney before taking any action. The answer here is not intended to create an attorney-client relationship.


I agree with my colleague Mr Behar. You should consult an experienced immigration attorney for this matter. You may schedule a consultation with an immigration lawyer in your area, my firm is handling these matters in New York. If you would like free legal updates on these immigration issues you may sign up for our newsletter at .

Att. number 917-885-2261 This advice does not create an attorney client relationship. No specific legal advice may be offered by the lawyer until a conflicts check is undertaken. Information sent through a web form or via email may not be treated as confidential. Please accept my apologies for spelling mistakes. Law Office of Alena Shautsova