Employer change when visa expired and extension in progress


My H1b was expiring on September 2015 and my Employer filed for extension in the month of July 2015. I received RFE and USCIS has asked to submit the client letter.
I have an offer from another company and they are about to file Change of Employer petition.

Can the new employer file the change of employer petition when my visa has expired in September 2015 and currently there is RFE for the petition filed by the current employer ?
Will there be any effect of RFE for the new petition that is going to be filed ?

Can someone please suggest ?


This can be tricky. You are creating a bridge scenario where you are considered in status based upon a pending application.

If new H-1 petition is filed now, it will consider you to be in status (since Sep 2015) based upon pending H-1 extension. If RFE is not responded, then extension is considered denied and I am not sure if your stay since Sep 2015 can be considered as a valid in-status for the purpose of filing H-1 transfer. So USCIS may approve new 797 but not issue any new I-94. Maybe you can have H-1 transfer filed in PP to get its decision before H-1 extension decision.

Your new employer’s attorney may be in a better position to guide you w/ best option based upon your situation.