Written by attorney Anu Gupta

Filing MTR on denied H1 transfer, can the beneficiary continue to work?

Question. The employer’s attorney is suggesting filing a Motion to Reopen/Reconsider on the H1 transfer denial. New employer wants me to continue working in the meanwhile. I started working for them when we filed the H-1 transfer petition. Should I continue working?

Answer. You should not work if the H1 transfer is denied. I also don’t recommend filing a MTR unless there is very clear evidence that the CIS made an error in denying the petition. CIS has a policy of converting most MTRs into Appeals, which generally take over a year to adjudicate. In the meanwhile, you are accruing out of status stay. If your initial H1 visa has expired, you are also accruing unlawful presence. If you are unlawful for over 180 days, you will be banned from re-entering the US for a period of time.

I would recommend that you try to return to work for your previous employer if the visa is still valid and it is possible for you to do so. If not, file another H1, leave the country, get it stamped at a consulate and return with a valid I-94.

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