H1 transfer without pay stubs - wierd RFE from USCIS Please help

[immigrantSong]

What is the name of your state? VA

I came to the US in 2004 on a F1 visa, i graduated this May and am on OPT till dec 17 2007.I filed for an H1 in April 2007 through company A(consultant) and my petition was approved. However, I never joined the consultant as i got a better opportunity with company B and joined them in Aug 2007. I filed for H1 transfer on sept 20 2007 and got RFE below

*You have requested for an extension of stay for the beneficiary. You must submit evidence that the beneficiary has been gainfully employed by the petitioner from which he last obtained his/her non-immigration status and was into the US.

*Submit copies of the beneficiarys pay statement from Oct01 to oct 20

The RFE implies that i am supposed to maintain H1 status before october1 which i am not sure about. Also it assumes that i was granted admission into the US based on my H1 which is not true.
Please advice my best way outta this soup

Thanks in advance

 

[ImmigAttyLana]

Unless you misquoted the dates in question in your post, you i ndicate tha the USCIS is asking for your status from 10/1/07-10/20/07 which IS after October 1 when you WERE supposed to be maintaining valid H-1B status with the initial employer in order to qualify for a transfer. Please clarify.

 

[immigrantSong]

Hi,
Thanks a million for the reply
Please find below 3 paragraphs verbatim from the RFE


*You have requested for an extension of stay for the beneficiary. You must submit evidence that the beneficiary has been gainfully employed by the petitioner from which he last obtained his/her H1-B non-immigration status and was granted admission into the United states.

*Therefore you must demonstrate that the beneficiary has maintained H-1B non-immigrant status afforded to him/her on that date until september 20 2007, the date the present petition was filed.

*Submit copies of the beneficiarys pay statement from Oct 01, 2007 to Oct 20, 2007

Regards,

 

[ImmigAttyLana]

Ok, so you can submit that you were maintaining valid F-1 OPT status through October 1, 2007 and then you cannot produce paycheck stubs after that so most likely the petition will be approved, if otherwise approvable, for consular processing. If you had really wanted for it to be approved as of 10/1/07 as a change of status, you probably should have submitted it through premium processing. Since you did not, the USCIS can rightfully demand proof that you have been maintaining status from 10/1/07 and since you have not been, they can approve for consular processing only.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter. Do you have an attorney assisting you with the H-1B petition and the RFE response?

 

[immigrantSong]

Hi Lana,

Thanks once again.

I do have an attorney who filed my case but i am seriously reconsidering the issue.
Another RFE point i recieved was to provide approval letter I-797 and I-94 . My previous consultant refuses to surrender the same and will possibly ask money from me. What do i do so as to get a smooth transaction

Thanks

 

[ImmigAttyLana]

You need to have a prior I-797 (at least copy) otherwise, you have no proof that you were granted H-1B status and, thus, are no longer subject to the quota.

If you are reconsidering that attorney, you can work with another attorney, but the documentation will still have to be presented regardless of who represents you.

 

[immigrantSong]

Hi Lana,
Thnx for your reply. One last question - if my old employer refuses to surrender the approval letter and I94 and demands money for the same, what are the options i have to get hold of my docs

 

[ImmigAttyLana]

Have your attorney try to obtain the documents on your behalf.

 

[immigrantSong]

Hi Lana,
Thanks for the reply
Is it legal for my old employer to withold my documents on the grounds that i have not joined his company after graduation.

 

[ImmigAttyLana]

The H-1B petition is their petition on your behalf. They should give you the approval notice and most reputable employers would give it to you. There is no law per se that obligates them to give it to you especially if they feel like you used them to file the petition on your behalf while you were shopping for a more lucrative job offer and now want to use their H-1B approval notice for the transfer, but.....you should be able to get a copy of the approval notice from them through your attorney (at least that's been my experience in my many years of practice)

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[immigrantSong]

Hi Lana,
Thanx for your advice. Is there a number i can reach you at for consultation

 

[immigrantSong]

Hi Lana,
Well i did manage to get my docs from the scamster consultant after paying a huge amount. Since he has committed a crime by accepting money , Is there any legal option i have to recover my money and maybe even sue him for harassment and malpractice. I spoke to some of his current employers and they have given me many more possible violations. In the worse case even if i dont get my money back, i wanna make sure that leech does not suck any more employees blood in future
Thanks
ImmigrantSong

 

[ImmigAttyLana]

Malpractice? No because most likely the employer is not subject to malpractice laws as a professional such as an attorney would be. If you want to report the employer, I would suggest you confer with an attorney who handles these types of issues and I do not.

 

[immigrantSong]

Hi,
Thanks for your advice, my H1 Xfer finally got approved. I also got in touch with WHD at dept of Labor and they suggested i file a WH4 complain http://www.dol.gov/esa/forms/whd/WH-4.pdf. Could there be any possible repercussions to my complain.
Thanks ,