How to Handle (or Prevent) H-4 Denial Due to Prior Employer’s H-1B Revocation

Our office has been receiving an increasing number of inquiries and reports of situations where USCIS would deny a pending I-539 H-4 application (sometimes with a concurrent I-765 H-4 EAD) based on a prior employer’s H-1B petition where the prior employer has withdrawn the H-1B petition once the employee has switched employers.    This situation can cause significant issues, ranging from a delay in H-4/EAD approval to being unlawfully present in the US and subject to a subsequent ban on entering the US.

Common Scenario

This is a common scenario which will illustrate the problem:

Employer ABC files a regular processing H-1B extension on behalf of employee together with H-4 and H-4 EAD extension for the employee’s spouse.   Meanwhile, the employee changes employers to XYZ and XYZ files an H-1B transfer (often with premium processing) and often together with H-4 and H-4 EAD extensions.

Employer ABC revokes the pending (or approved) H-1B extension petition after employee leaves;  eventually, USCIS looks at and denies (often without an RFE) the H-4/EAD applications filed on the basis of ABC’s H-1B petition.

To make matters even worse, USCIS normally does not issue an RFE on the H-4 application and denies directly (arguably, contrary to the requirement to issue an RFE first).   Each case is obviously different but this general scenario illustrates the problem:  the H-4 spouse ends up with a possible gap in work authorization, unable to take advantage of the 540-day auto extension or perhaps even having a (significant) gap in status and I-94 validity.

How to (Try to) Prevent This Scenario from Happening?

Good strategic planning at the onset of a case may help.   First,  when filing for an H-1B transfer, an employee should make a full disclosure to the new employer’s legal team about any pending H-4/EAD applications.

File New H-4/EAD with H-1B Transfers.   Our office generally recommends filing a new I-539 (depending on the validity dates, even often a new I-765) with an H-1B transfer being filed by a new employer.   While this may not solve the issue of USCIS denying the prior H-4, at the very minimum, it may provide status and work authorization alternatives.

Interfiling New H-1B Approval With Prior Pending H-4.    One scenario may be to obtain the new employer’s H-1B transfer approval and then to immediately “interfile” this new approval with the prior and pending H-4 application(s).    The goal is to inform USCIS that the prior pending H-4 is approvable based on the new employer’s H-1B approval — essentially, this is an attempt to “substitute” the new H-1B approval as the underlying basis of the prior pending H-4 application.  Unfortunately,  this approach does not always result in approvals — we have seen few cases where USCIS would ignore the request and deny; however, at a minimum, the interfiling creates a record which can then be used during a motion to reopen (see below) after a denial.

What to Do After an H-4 Denial?

First, it is important to understand the impact of the H-4 denial.   Does the H-4 spouse have another pending or approved H-4 to keep them in valid status or authorized period of stay?     Can they remain in the US but stop working – and if so, as of which date?   Or, in the worst case, has the H-4 spouse fallen out of status with an expired I-94 card (bad) with more than 180+ days of unlawful presence (very bad – possible ban on entering the US – see more information)?

Motion to Reopen/Reconsider.    One option is to consider filing a Motion to Reopen/Reconsider (MTR) the H-4 denial decision.    The main argument generally is that the H-4 application remains approvable as long as the H-1B holder continues to maintain status;  so a denial of an H-4 due to prior employer’s withdrawal should not cause H-4 denial, especially without an RFE or NOID.    USCIS is generally required to issue an RFE or NOID when there is negative information so a denial without an opportunity to provide evidence of continued eligibility is wrong.     There is also an argument of due process and fundamental fairness to cause an H-4 spouse to suffer (especially after waiting many months) due to no fault of their own.   Unfortunately, as of the writing of this article, the processing times for MTRs are long – it can easily take three to six (or more) months for USCIS to review an MTR.

Nunc-Pro-Tunc Application.    If, as a result of the denial, the H-4 spouse is no longer in valid status, then, in addition to the MTR option discussed above, it would be necessary to assess whether there is also a threat of a ban on entering the US of the unlawful presence (I-94 expiration) exceeds 180 days.    In many cases, the only solution then becomes filing another H-4 application with a request for “retroactive approval”, often called nunc pro tunc.    Please see this related article on the mechanics of the nunc pro tunc process.   While this kind of approval is discretionary by USCIS,  we have been able to secure results for clients in the past based on well-reasoned and documented arguments as to how somebody falls out of status due to absolutely no fault of their own.  USCIS is generally responsive to this.

Conclusion and Cautionary Notes – Proper Plan and Strategy;  Being Proactive and Watch Out for I-94 Expiration/Unlawful Presence

The situation and solutions outlined in this article apply only to a certain set of applicants and circumstances but we are hopeful that they provide helpful guidance not only to them but also to everyone else who may be considering H-1B transfer with pending H-4 extension.

As noted above, we urge proper planning and disclosure as part of the new H-1B transfer petition.   We also urge applicants in similar situation to disclose all relevant facts and be proactive in seeking legal advice as to their options.    Also, we urge applicants to carefully review and consider their H-4 I-94 (and H-4 EAD) expiration dates and understand the timelines to ensure uninterrupted status (and work authorization — even under the 540-day rule).

Please do not hesitate to contact us if we can be of any help.    Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.