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H1B transfer denied,I will appeal the decision,what are the other options available?Can I stay in US during appeal?
Anonymous6 views5 answers
H1 Transfer->RFE->Denial
Lost job on Sept 15th while on cap-gap with H1 approved with company A which kept me in payroll as loss of pay until Oct 1st when my H1B was effective for 1st time , Oct 2nd joined company B and initiated transfer. Got RFE and then H1B transfer denied
Giacomo Jacques BeharImmigration AttorneySan Diego, CACA licensed ·
If your employer (never you) decides to appeal the denial to the AAU, it will take about a year and a half to obtain a decision. In 4 out 5 cases, the AAU sides with USCIS and affirms the denials.
You have no legal right or status to remain in the US during the pendency of an appeal or a motion to reopen/reconsider (MTR) filed with USCIS. You will start accumulating "unlawful presence" from the date of expiration of your I-94 or Sept. 30th.
Another option might be for employer to file a Motion to Reconsider/ Reopen the case at the USCIS Service Center, or in the alternative, if USCIS will refuse doing so, then Appeal.
Perhaps you'd like to enroll in School again, to be able to legally remain in the US until next October, when H-1B numbers will again be available?
Any appeal would need to be filed by the employer. An appeal does not authorize the employee to remain in the US.
As to options, those depend on facts. You really need to meet one on one with an experienced immigration attorney, whether myself or one of my colleagues, so that he/she can review all your documents and facts in order to determine what your options are.
In addition to appealing the denial administratively or seeking reopening or reconsideration, your employer (and, according to some courts, you personally) may file a lawsuit in federal court seeking judicial review of this decision, but only if the decision is so obviously wrong as to be "arbitrary and capricious", an "abuse of discretion" or "not in accordance with the law". If such a lawsuit is filed, the person filing it may ask the judge to which the case is assigned to suspend the effectiveness of the denial while the case is pending which should, in most instances, make you "lawfully present" in the U.S. while the case was pending and, might, under certain circumstances, authorize you to be employed by your H-1B petitioner. However, whether the judge will suspend the effectiveness of the denial is up to his discretion, and depends very much upon his view of the merits of the suit.
