Layoff -> H1B transfer -> RFE -> H1B transfer reject - Another H1B app


This is long and complicated so I thank you for your patience. 


I had been working as a full time employee on a H1B visa with a mid sized company in Seattle (COMPANY A) since March end 2013. I was laid off in March 2014 due to a position elimination and the company agreed to keep me on payroll (but not work) for one more month while I was receiving severance (ie till the end of April 2014). 


During April I was frantically looking for a job and I secured one by mid April. My LCA approval and consequently the H1B transfer receipt for the same came in just in time ie April end. I started work on first week of May. This company, COMPANY B with whom I secured a job is a sub-contractor of a main vendor of a very big Telecom Company in Seattle. 


Mid June, I got a reply back from USCIS with a RFE for following reasons:

- More information needed regarding how my skills, education were relevant to the job (See below for my Education Details)

- More information required about how my employer would have a right to control me since I was working at a Client Location


We immediately replied back with a detailed explanation for the need of Computer Engineering as well as Marketing skills required for the "Web Analytics Manager" position and also a 


percentage breakdown of which skill I would use for what amount of time in my job. We, also provided documents on how my employer would control me with weekly calls, status updates, timesheets etc. 


End of June, I got a denial/rejection of Visa Transfer from USCIS stating 

- the percentages of breakdown are arbitary and that they didnt agree to them, they apparently considered the job to be more marketing and said US doesnt require special skills for 


Marketing jobs. Its funny becuase my first H1B visa application through quota was filed under "Marketing Research Analyst" and this time got declined becuase the job was marketing

- we did not provide enough evidence for the right to control employee by employer


Right now, ie as of July 4th weekend, I am without a status (I think) and I am thinking of my next steps...


The main vendor for the telecom company has agreed to refile for my H1 transfer again using the learnings from this rejection. So we wont have a sub contractor in between.  

However, the lawyer who did my H1B transfer application suggested that 

- I go back to my home country (India) and come back on a F2 (since my wife is on a F1 OPT extension with an accepted H1 which will be active since Oct 2014) and then apply for Visa 


Transfer with the main vendor.


- I go back to my home country and have the application filed simultaneously and come back only when accepted


- Irrespective of H1 transfer application status come back on an H4 during October period when my wife's H1 will become active.


[b]QUESTION: [/b]Would it be a good idea to transfer to F2 and come back quick in a week and then apply or the same job. I am afraid it will cancel my 3 year H1B. Or does it not cancel? Please explain. 


[b]Plot twist:[/b]


I have another Visa application which went through during May end through a very large IT firm from India for a project at a large corporation in Redmond. This happened during May end and 


was beyond the "one month" since my last day at COMPANY A, so I was expecting a flat rejection. 

However this application did not get rejected and I got a RFE for it last week of June, just a few days back. I am still waiting for the reason of the RFE to arrive the company by mail, so I dont have an update on that yet.




Will the above pending application help me stay back in US and not need to leave till I hear about its decision. I will be simultaneously (July mid) reapplying for my visa transfer through the earlier mentioned Main Vendor of the telecom company. 




- What are all the options I have on my plate?

- Ideally I want to stick around with my wife and not leave the country till my job is secured and my H1B transfer is accepted

- If I do need to go back to my home country, I want to minimize the stay outside US while not compromising my Visa transfer approval chances


As of now, I do realize I cant stay in the country without a status for too long (is it a 90/180 day limit???). Also, I dont know when that counter begins for me. Could you explain that..

- Is it since April end? (when I lost my first job) OR

- June end? (when my transfer was rejected) OR

- not yet started since I still have another application in RFE now (which would mean I can still stay)




As long as I stay in status or be out of country to avoid out of status, can I apply for an H1B transfer with any amount of gap .. this is assuming my H1B 3 year period is still valid. 




Dec 2012: Grad Date

Mar 2013: Employment Start date

Oct 2013: H1B effective start

Apr 2014: Layoff from Company A 

May 2014: Company B start date

June end 2014: Transfer Application Rejection Date


Edu Background:


Undergrad: BE Computer

Grad:  MS Marketing

Professional Background: 4 yrs of industry experience in web analytics, seo, marketing analytics


Spouse Details:


Jan 2014: F1 OPT extension started

April 2014: H1B application approved

Oct 2014: H1B status active

Very well drafted and detailed questions. Thanks. Sorry for your stressful experience. Any term in a position that says ‘analytics’ or ‘analyst’ triggers an RFE 90% of the time these days. If you switch to an F-2, then again a switch to H-4 will be needed. Can you consider filing for a change of status and going on F-1 until the dust settles and outcomes are clear? There are many low cost programs for this. You are a very valuable executive to different groups, I can see that, but your skillset is heavy on analytics and business optimization - these are extensions of IT tools. USCIS will want to see ‘what else’ from an IT perspective exists in your resume.

Best wishes

Dr. Sandeep Shankar, Colorado Heights University, Denver, CO, USA.;

Is there an update about this case??? Did u finally get this resolved ? How did u do it?

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