Question

Hi lawyer team,

I left my 1st employer at the beginning of February, my 2nd employer sponsored the H1B transfer back in March.

I started working after getting the receipt, and then my case got RFE, and the deadline to submit the RFE is mid of June. However, my 2nd employer couldn't continue to submit the RFE because they could only continue my employment until the end of May because of the pandemic impact. At the same time, the RFE deadline was extended for 60 days, which means the deadline for submitting the RFE is the mid of August for me now.

One of the lawyers thinks, as long as my employer doesn't withdraw my H1B RFE case, I am still on H1B status and a valid status to stay in the country until they drop it before 8/15, and I can transfer to B2 before they drop it.

However, two other lawyers think my last day of H1B status is 5/31 which is the last day with the 2nd employer, and because the application with the 2nd lawyer was RFE (not approved), I don't have 60 days grace period this time, which means I am out of status since 5/31(the last day with 2nd employer), and it doesn't matter with when the 2nd employer withdraws the RFE case. Also, it is very risky to submit 1-539 to transfer to B2 now since I am already out of status.

Because I hear different voices, I don't know which one should I follow, and I am very concerned about being out of status, which is the least thing I want to happen. Also, due to the travel restrictions, it is so hard to leave the country as soon as I want. Can you help me to analyze what perspective should I take? Thank you!!!

Answer 1

1. You don not have any grace period after you got reject this time since you did not file your H1B transfer while still working for your previous company. In other words, your grace period is used up during the gap between your two jobs in February- March.

2. To change your status, you need to currently have a legal status first. So if your current H1B status is still valid, or if you are in the grace period,  then you can apply for a change of status. Since you are not in either situation, you cannot change your legal status to B2 now.

3. You are not consider as out of status until you get the rejection letter.

Feel free to dial 8006856947 if you have more questions.

Comments

Hi Vera,

I appreciate your prompt reply! I wonder if the "rejection letter" can be interpreted as "when my 2nd employer withdraws my H1B RFE application" in my case? Aka as long as 2nd employer doesn't withdraw RFE before the deadline, I am still considered as on H1B status (even I am not getting paid anymore from 5/31)? Thank you!