Can My New Employer File for an H-1B Transfer When My Current H-1B Transfer is in RFE Status?

Can my new employer file for a transfer when my current H-1B transfer is in RFE? Yes, your new employer can indeed file for an H-1B transfer even if your current H-1B transfer is in a Request for Evidence (RFE) status. However, there are several important points to consider when navigating this complex situation:

Overview of the Process

When your current H-1B transfer is in RFE, your new employer can proceed with filing a new H-1B petition on your behalf. Here are the key points to understand:

Pending RFE

While the RFE is pending, you must maintain your current H-1B status. If your current employer has not withdrawn your H-1B petition, you can continue to work under that status. It is crucial to comply with all regulations to avoid any potential legal complications.

New Petition

Your new employer will need to file a new H-1B petition for you. This new petition will be considered independently of the current RFE on your current transfer. The new employer's petition will go through a separate process and be evaluated based on its merits.

Communication and Timing

It is advisable to communicate with your new employer about the pending RFE. They may want to know the details and potential implications on the transfer process. Early and clear communication can help manage expectations and avoid any misunderstandings.

Timing-wise, your new employment start date will depend on the approval of the new employer's petition. Even if the previous RFE is unresolved, the new petition can be processed independently of the current one, provided you maintain your status while the RFE is pending.

Approval and Start Date

If the new employer's petition is approved, you can start working for them based on the new petition. The previous RFE's outcome does not affect the new petition's approval, although it will be processed separately.

It is essential to follow the necessary legal steps and maintain your status throughout the process. Consulting with an immigration attorney can help navigate the specifics of your situation and ensure compliance with all regulations.

Dealing with Expired I94

If your current H-1B status is based on a petition extension and your I94 has expired, but you are still in the US as a result of the extension, then your new petition with a new employer will be dependent on the outcome of your extension petition. The new petition will not be approved or denied until you have a decision on the current petition.

However, if your I94 is still valid, you can more easily file for a transfer with the new employer. Having a valid visa or a valid I94 is crucial to proceed with transferring your H-1B status when changing employers.

In summary, while the RFE on your current transfer may impact the timeline and overall process, your new employer can still file for an H-1B transfer application. The new petition will be processed independently, and clear communication with both employers will help manage the process effectively.

Legal Advice

Seeking legal advice from an experienced immigration attorney is highly recommended. They can provide detailed guidance tailored to your specific situation and ensure that you follow all necessary steps to protect your rights and maintain compliance with immigration regulations.

By maintaining open communication with both employers, following legal advice, and continuing to comply with all applicable regulations, you can navigate this complex situation successfully.