Navigating H-1B Transfer Issues: What to Do After an Amended Application Denial

Knowing whether to continue with an H-1B transfer through another employer if your current H-1B amendment has been denied can be complex. This guide aims to provide clarity on the options available and steps to consider when facing such a situation.

Understanding H-1B Transfers and Denials

When you file for an H-1B transfer through another employer, the continuation of your lawful status is critical. However, if your current H-1B amendment is denied, it's important to understand the implications and options you might have.

One of the key points to consider is the continuity of your employment. If you have left your first job and are no longer working for the original H-1B employer, and your previous H-1B has expired, the chain of employment may be broken. This can affect your status and the likelihood of a successful transfer.

Common Circumstances Leading to Denial

One of the most common reasons for H-1B amendment denials is the failure to respond to an RFE (Request for Evidence). This can happen even if the application was initially approved, as changes in circumstances can lead to further scrutiny from USCIS.

In your specific case, your amendment was denied twice, with the first denial stemming from a lack of timely response to an RFE. The second denial, however, does not have a stated reason, which may be due to subsequent changes in your employment or the current state of your H-1B application. It's crucial to seek detailed information to fully understand the reason for the denial and explore further actions.

Considering a New Employer for H-1B Porting

Given the previous denials, you might be considering switching to another employer to port your H-1B. While your H-1B application is still in process, this decision should be made cautiously. Here are some key points to consider:

Impact on Porting

Your ongoing H-1B amendment denial could have an impact on porting, as USCIS has canceled your status if your H-1B amendment has been denied. This means that if you are in a position of being out of status, you need to take immediate steps to rectify the situation before attempting to port to a new employer.

Role of I-140 Approval

Even though you have received your I-140 approval, it may not directly help with porting your H-1B status. The I-140 approval is a critical step toward completing the process, but it does not automatically grant you the right to transfer to another employer if your current H-1B amendment is denied.

Steps to Take

Given these circumstances, here are the recommended steps:

1. Seek Detailed Information on Denial

It's important to gather detailed information on why your H-1B amendment was denied. This can provide clearer direction on how to proceed. If possible, contact your employer and the USCIS directly to request a formal denial notice with specific details.

2. Consult with a Legal Expert

A legal expert can provide guidance on the best course of action, especially if you are facing denials due to complex employment circumstances. They can help you understand the legal implications and advise on the best steps to take.

3. Explore Alternative Employment Options

Consider other employment opportunities that align with your skills and interests. If you are able to secure a new employer who is willing to sponsor your H-1B, it could be a viable option. However, ensure that the new employer has a good standing and is aware of the complexities involved in transferring your H-1B status.

4. Keep Your Status Valid

Ensure that you are always in valid H-1B status. If you are out of status due to an ongoing denied amendment, you may need to leave the U.S. and re-enter on a new H-1B application or with another immigration status that allows you to work.

Final Considerations

The decision to switch to a new employer for H-1B porting should be well-considered and may affect your current legal status. It's crucial to ensure that your next steps align with your visa requirements and employment opportunities.

For more detailed information and personalized advice, please do not hesitate to contact me directly. I am here to assist you and help you navigate through these complex issues.