H1B RFE: Unique and Distressing Situation

I have been in this country legally since 2008. I transitioned to H1B visa in 2010 and have been on H1B since then. I worked for Emp A from 2010 to 2012 and Emp B from 2012 till Feb 28th 2020.

My current I94 is valid till Sep 30 2020.

  • My new employer, Emp C, filed for a H1B transfer in January 2020 which got approved and we got the approval notice. Once we got the notice, I gave my 2 weeks notice at Emp B and my last day at Emp B was February 28th 2020.
  • I started working for Emp C on March 9th 2020 on the new approved petition until I was informed in mid April that there was some mishap at the bank and the checks did NOT clear and USCIS issued a NOIR. As a result, I was informed that a new petition is going to be filed on my behalf so that we are covered if the original petition gets revoked. The new petition was filed with effective date of April 24th 2020 and we got a receipt notice from USCIS dated April 27th 2020. So everything was done within the 60 day grace period from Feb 28th 2020.
  • On June 17th 2020, we got a RFE from USCIS stating that they need proof that I maintained my non immigrant visa status from Feb 28th 2020 till April 28th 2020 and they are asking for paychecks from my previous employer (Emp B).
  • After consulting with my employers attorneys they suggested that USCIS has an issue with approving the extension of stay request and not my H1B petition itself. They are not sure why USCIS is questioning my maintenance of status as all the filing dates were within the 60 days grace period window after Feb 28th 2020. Also it wasn’t like I was unemployed in that period. I was working with Emp C and was getting paid semi-monthly based on the first petition approval. The first petition was revoked on May 20th AFTER the second petition was filed on April 27th.

As a result they suggested the following 2 options:

  • File a response to the RFE immediately using premium processing: They said that if we do this and the extension of stay gets denied for some reason then I will have to leave the country immediately and wont be able to return till the executive order expires. We don’t know when that’s going to be and I could be stuck outside the US for a long time.
  • File a response to the RFE as late as possible: They said that another option is to file a response as late as possible without premium processing (in this case mid November 2020 including the 60 day additional response time for RFE because of Covid). If we still get a denial for the extension of stay then hopefully it will be 2021 and hopefully the executive order of blocking new H1B visas will expire by then.
  • In addition to all of the above, the biggest challenge in all this is the fact that I am pregnant with my second child and am due in Feb 2021. If I go with the first option then its possible that I wont be able to come back to the US in time for my delivery and if I go with the second option then it may not be possible to travel as it could be in the last stages of my pregnancy or as I would have just given birth.
  • Given that there is no violation of status here what are the chances of my rfe response being rejected/denied ?
  • Will it be a good idea to file a COS to h4 now with nunc pro tunc clause just in case the h1b rfe response is denied so that it will put me back in status ?
  • I am really distressed about this whole situation right now and would really like to hear from you about how I should proceed here.


If your spouse is also on H1B, you could use option C and apply for change of status to H4 or B2. You could either respond to RFE with premium processing and change status if it fails or go with delayed response and change of status route.