Without premium processing and with long processing times, it is becoming more common to need an amendment while the underlying petition is still pending. I recently handled a case with multiple overlapping petitions and RFEs, which ultimately resulted in approval after almost two years of processing.
Back in the fall of 2015, Mr.Worker was working for a U.S. employer pursuant to an H-1B petition approval. He was offered a new job and our office filed a change of employer petition, commonly referred to as an H-1B transfer, in regular processing. Under the portability provision of AC-21, Mr. Worker is authorized to begin work for the new employer as soon as the transfer petition is filed.
Just over a month later, the project to which Mr. Worker had been assigned was abruptly terminated. A new project was immediately found, but at a work location that was outside the area covered by the previously certified Labor Condition Application (LCA) filed with the transfer. In order to move Mr. Worker to the new location, a new LCA was obtained and an amended H-1B petition was filed in premium processing with an explanation regarding the still pending transfer and reason for amendment.
A Request for Evidence (RFE) was issued on the amendment petition asking the employer to demonstrate a valid employer-employee relationship and documentation of the employee’s maintenance of status because the underlying transfer was still pending. We provided the receipt notice from the pending transfer and explained that the Beneficiary was maintaining status based on the pending petition pursuant to AC21. We received approval of the amendment a few weeks later, while the transfer continued processing.
As luck would have it, in the spring of 2016, the second project ended. Another project was found, again in a work location that was not covered by either LCA. A new LCA was obtained and another amendment was filed, this time in regular processing, all while the underlying transfer was still waiting to be adjudicated. Both the second amendment and the transfer remained pending for another six months with no action. The employer ultimately decided to upgrade the second amendment to premium processing (back when it was still available). This almost immediately resulted in two RFEs being issued, one on the transfer filed a year earlier, and another on the second amendment that had been upgraded.
The amendment RFE again asked for documentation of the employer-employee relationship and again asked for documentation of the employee’s maintenance of status. The transfer RFE also asked for documentation of the employer-employee relationship going back to the original project assignment (which no longer exists) and the employer was requested to establish that the position was a specialty occupation.
Our strategy was to respond to the amendment RFE first to document the current employer-employee relationship at project #3 and again provide the receipt notice for the underlying transfer to establish maintenance of status under AC-21 portability. The transfer RFE was trickier, because the requested documentation was related to project #1, which no longer existed. We decided to explain the unique history of the case with the loss of two projects and the filing of two amendments. We explained that the extremely long processing time for the transfer petition and the fact that Mr. Worker was no longer assigned to project #1 made it impossible to obtain some of the requested documents. We sought to establish the employer-employee relationship during project #1 through a combination of available evidence and then thoroughly documented the employer-employee relationship at project #2 using the documents from the RFE on amendment #1, and finally thoroughly documented the employer-employee relationship and specialty occupation at project #3 using the documents from the RFE on amendment #2.
After sixteen pages of legal argument and tons of supporting documents, I’m happy to report that we received approvals for both the second amendment and finally the transfer, almost two years later!