H1B transfer Denied - i-485 Applied

[fmmac]

What is the name of your state? California

I am working as Senior Programmer/Analyst.

Worked with Company A up until March 31, 2007 (Still not resigned, have told the company will rejoin after a few months. To rejoin I will have to get a project for the company)
Company A EB3 LC approved on Feb 20, 2007 with priority date April 2002
Company A H1B 8th year extension approved valid up to May 1, 2008
Company A I-140 approval pending applied on March 7, 2007

Applied for H1B Transfer to Company B (Receipt date March 15, 2007)
Started working for Company B from April 2, 2007
Company B EB2 Perm LC Approved May 25, 2007
Company B I-140 Approved June 16, 2007
Company B I-485 (along with I-131 and I-765) applied on July 20, 2007 with my wife as my dependent
Company B H1B transfer RFE, responded on July 2, 2007
Company B H1B transfer; Received an email on July 27, 2007 with Current status as “We mailed you a decision”. With this status I presume that the H1B transfer has been denied otherwise they would has sent an email with the Current status as Approved.

Also
On July 20, 2007 my wife (a teacher) also applied for I-485 with myself as dependent.

With my Company B H1B transfer Denied what is my STATUS? Am I out of status? What options do I have?

Someone please advice.

 

[ImmigAttyLana]

If your I-485 has been already filed then even if the H-1B has been denied, you are still in status. If you have applied for a EAD with the I-485 then you will be able to work with that document, once it is approved and issued.

You should not assume that the H-1B has been denied, especially if the RFE was responded to and responded to completely and thoroughly.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[fmmac]

Thanks Lana for your prompt response. We had completely and thoroughly responded to the RFE.

The premise of my assumption that my H1B may have been denied is that, when an H1B is approved the online case status shows as “Approval Notice Sent”. In my case online case status shows as “We mailed you a decision”

Has anybody got an online case status as “We mailed you a decision” and the actual mailed notice had H1B approved.

Another question. Since my previous company’s (Company A) H1B extension has been approved and is valid till May 2008, in the event of H1B transfer denial, will I be able to work for my previous company till I get the EAD approved and issued.

Please let me know.

 

[ImmigAttyLana]

Yes, if that petition has not been revoked and you still want to work for that company.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[fmmac]

Hi Lana,

Your opinion, "If your I-485 has been already filed then even if the H-1B has been denied, you are still in status." Is this true even if I have not received the receipt notice. My i-485 package was mailed on July 20, 2007.

Thanks!

 

[ImmigAttyLana]

Yes, receipt notice is just confirmation of receipt. If it was sent by something like FedEx, there should be proof of actual delivery to the USCIS.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[fmmac]

Thanks Lana, you answered almost all my questions. Also thanks for your prompt responses.

Now I am anxiously waiting for the mailed notice to arrive. The online case status “We mailed you a decision” instead of “Approval notice sent” has made me pretty apprehensive of the outcome.

 

[fmmac]

Now I tried the number 1-800-375-5283 to check my status. The recorded message says that my case has been denied.

Now can I appeal my case?

If I can appeal my case, can I work for the same employer (employer B) whose H1B transfer got denied until the appeal process is over?

 

[ImmigAttyLana]

You can only appeal if there is a basis for the appeal. You cannot just appeal because you don't like the decision if there is a valid reason for the denial. The appeal takes about a year so practically speaking this is not going to be a solution for your situation as by the time you hear about the appeal your I-485 may already have been approved and it will be a moot point.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[fmmac]

Let us consider the scenario that I have the basis for an appeal. In this event can I continue working with Company B during the appeal process.

 

[ImmigAttyLana]

Why don't you just wait for the decision from the USCIS first before supposing facts that are not yet known. If your petition is denied, you need to determine if it is denied as a transfer or denied as a substantive petition. That's when you can determine if an appeal is even necessary.

 

[fmmac]

Hi Lana,

Thanks for being patient with me. The 1-800 USCIS phone message system says that on July 28 i-129 petition has been denied. Yes I will have to wait till the mailed notice reaches the employer, that could be coming Tuesday or Wednesday, hopefully.

But until the notice reaches the employer, is it legal to work for my employer B on this Monday?

In light of my I-485 with Employer B was MAILED on July 20, 2007 and I still do not have the receipt notice. Can this be considered as I-485 pending?

In the worst-case scenario, if I have to wait till I get my EAD and then start working, will this make me out of status.

 

[ImmigAttyLana]

You really should not be working if you know it's been denied but I suppose you can wait until the actual notice.

I already explained to you that as long as the I-485 has been filed (you have proof of delivery to USCIS) then it is filed, regardless of whether or not you have the receipt notice already.

 

[fmmac]

Thanks Lana, you have been really patient with me, for now, I have all my questions answered.

I am awaiting for the mailed notice to reach us. Then take appropriate action.

Thanks!

 

[fmmac]

Hi Lana,

I detected the problem. I cross-questioned the attorney who submitted the RFE. He had not submitted one document requested in the RFE.

Excerpt from the the RFE.....
"Location of Employment: The petitioner has indicated on the Form I-129 that the benificiary will be working in Manassas, Virginia. However, the ETA-750, Labor Condition Application, submitted by the petitioner authorizes H-1B employment in Norwalk, CA. Submit additional evidence to show where the benificiary will be working. Additionally, if needed, submit a valid ETA-750 for the benificiary's work location"

Initially when the attorney had submitted Form I-129. The section Part 5 item 5 (Address where the person will work if different from address in Part 1) the attorney had left it blank. Here he should have filled in the California address.

We pointed this error to him, so after 10 days he submitted this page with the missing info filled in and the receipt number to USCIS. He has the proof that he had sent this information with the tracking number. He claims that he had sent this information earlier hence he did not sent it along with the RFE.

Lana what comment you have on this.