H-1B Extension or Transfer RFE for Maintenance of Status: Pay Stubs, W-2s, I-94s and Gaps Explained

Your extension or transfer is stuck on one question, whether you kept H-1B status, and the answer lives in your pay stubs, W-2s, I-94s and the paperwork behind every gap.

By F1Jobs Team · 2026-11-01 · 10 min read

Payroll binders and a vintage adding machine on a filing desk in a dim accounting back office at late evening, lit by a single desk lamp

Part of our guide to H-1B transfers.

If you received an RFE for your H-1B extension or transfer that asks about maintenance of status, USCIS wants proof that you kept H-1B status from your last approval or admission until the new petition was filed: that you worked for the employer on your approved petition, were paid at least the wage it promised, worked where it says, and filed before your I-94 expired. The evidence is usually consecutive pay stubs, a W-2 for each year, your current I-94, and a documented explanation of any gap.

Status as of 2026-11-01:

In effect: deference to prior approvals, 8 CFR 214.1(c)(5). Removing it (RIN 1615-AD26) is only proposed; comments close 2026-11-13.
In effect: the worker 60-day grace period, 8 CFR 214.1(l)(2). Eliminating it (RIN 1615-AD22) is only proposed; comments close 2026-11-10. After either date, the change is still a proposal unless a final rule is published.
In effect, challenged: PA-2026-05 (since 2026-08-05) lets officers deny without an RFE when required initial evidence is missing; AAUP v. Mullin (D. Mass., filed 2026-10-05) challenges it, with no ruling.
In effect as a directive: EO 14431 (layoffs as an H-1B factor), with no implementing guidance found and no automatic denial.

What is a maintenance-of-status RFE on an H-1B extension?

A maintenance-of-status RFE is a USCIS request, sent to your employer on Form I-797E, for proof that you kept H-1B status from your last approval or admission until the extension was filed. The officer is checking employment with the employer on your approved petition, pay at or above the petition wage, work at the approved worksite, and an unexpired I-94 at filing.

An extension or transfer I-129 asks for two decisions: whether the job qualifies (the petition) and whether you may stay longer (the extension of stay). Under 8 CFR 214.1(c)(4)(i), an extension "may not be approved for an applicant or beneficiary who failed to maintain the previously accorded status," apart from a narrow late-filing excuse. Paragraph (c)(6), the rule your RFE enforces, requires evidence that you "maintained the previously accorded nonimmigrant status before the extension or amendment request was filed," such as "copies of paystubs, W-2 forms, quarterly wage reports, tax returns, contracts, and work orders."

The two decisions can split. The USCIS Policy Manual says an officer may approve the petition yet deny the extension of stay for a reason "such as inadmissibility factors or failure to maintain status." It does not say what happens to the worker next, so ask the employer's immigration attorney.

In our summary, keeping status means working only as authorized (8 CFR 214.1(e): "Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status"), at the LCA wage, which the Department of Labor's H-1B page describes as the actual or prevailing wage, "whichever is greater," and with no material change, such as a worksite outside the LCA's area, made before an amended petition is filed.

Why did my H-1B extension get an RFE about maintenance of status?

Usually because a document did not match the petition, or one the officer expected was missing. USCIS publishes no list of triggers; these are the mismatches the rules make relevant:

Pay stubs or a W-2 that look lower than the LCA wage.
Weeks with no pay stubs.
A W-2 that mixes F-1 OPT and H-1B months.
A payroll work address that differs from the LCA worksite.
An I-94 that expired before filing, or one older than your latest trip.
A transfer after a layoff with no proof of the last day worked.

For scale, USCIS's I-129 RFE data for FY2026 Q1-Q3 (October 2025 to June 2026) show an H-1B approval rate of 97.0%, with an RFE in 8.5% of completed cases, initial petitions and extensions combined, all before PA-2026-05. An RFE is not a denial; it is a chance to fill the gap.

The maintenance-of-status evidence matrix

Evidence by scenario, as of 2026-11. The list in your RFE governs; this shows what each situation usually turns on.

Scenario	What the officer is checking	Core evidence	Evidence that explains it
Continuous employment, same employer	Petition wage paid throughout	Consecutive pay stubs, a W-2 per year, current I-94	Pay-history summary if salary changed
Gap inside the 60-day grace period	New petition filed inside the window	Final pay stub, separation letter, new petition receipt	Day count from last day worked to filing
Unpaid leave (medical, parental, personal)	Leave was approved and the job continued	Leave approval, pay stubs before and after	Leave policy, return-to-work confirmation
Bench time	You stayed employed; whether you were paid	Pay stubs, offer letter, LCA	Back-pay records; the attorney's explanation
Worksite move without an amendment	Whether the move was a material change	LCA, work-location records, any amendment	Dates and addresses of each worksite
First extension after a change of status from STEM OPT	H-1B work began on the start date	I-797A with its I-94, first H-1B pay stubs	Payroll note splitting that year's OPT and H-1B wages

How many pay stubs do I need to send?

No regulation or form sets a number. The response should match the period and documents the RFE names. When it asks broadly, the period that usually matters runs from your last approval (or last admission on the I-94) to the filing date. What makes pay records persuasive:

Consecutive, not selected. A missing pay period invites the next question; a real reason goes in writing, with its own document.
The year-end stub, whose year-to-date totals tie the stubs to the W-2, plus current-year stubs, since that year has no W-2 yet.
Untouched originals. Never annotate, edit or recreate a payroll record.

Why a W-2 can look low. Box 1 leaves out pre-tax deductions such as 401(k) deferrals. In the year you changed from F-1 STEM OPT to H-1B, Boxes 3 and 5 can also be lower, because an F-1 nonresident alien's OPT wages are often exempt from Social Security and Medicare tax. A payroll letter usually reconciles this; a tax professional who handles nonresident returns can explain your numbers.

What if I had a gap in pay or was on unpaid leave?

It depends on why the pay stopped. A gap is not automatically a status violation, but each one needs its own paper trail.

A gap after a layoff, inside the 60-day grace period

Under 8 CFR 214.1(l)(2), an H-1B worker "shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment" for up to 60 consecutive days or until the petition's validity ends, whichever is shorter, once per validity period. You may not work in that time unless something else authorizes it, and "DHS may eliminate or shorten this 60-day period as a matter of discretion." The new petition should show the last day worked and a filing date inside the window; our guide to being laid off while an H-1B extension is pending covers the old petition.

The 60 days still apply as of 2026-11-01. The proposal to eliminate them would leave only the 10-day window after a petition's end date, which does not run from a layoff.

Unpaid leave (medical, parental, personal)

Under 20 CFR 655.731(c)(7)(ii), an employer need not pay for time off "at his/her voluntary request and convenience" or for conditions such as maternity leave, unless the period is subject to payment under its benefit plan or a statute such as the FMLA. That answers the wage question only. Whether the leave affected your status is for USCIS to decide, and no regulation we checked caps its length. Show the approval, the dates and your return; see our guide to parental leave and FMLA on H-1B.

Bench time without pay

When you are idle because of the employer's decision, 20 CFR 655.731(c)(7)(i) requires it to pay "the salaried employee the full pro-rata amount due." Unpaid bench time is the employer's failure, but it still shows as a gap that the attorney has to explain. Your back-pay rights are in our guide to being benched on H-1B.

A worksite move without an amendment (the "H-1B amendment RFE")

Under 8 CFR 214.2(h)(2)(i)(E), an amended petition "must be properly filed before the material change(s) takes place," and a move to an area that needs a new certified LCA is a material change. Work under the changed terms waits for approval unless you are eligible for H-1B portability. If you moved with no amendment, take any work-location questions straight to the attorney. Our guide to return-to-office moves and LCA amendments covers when a move is material.

Your first extension after a change of status from STEM OPT

The status being extended is H-1B, so in our reading the review starts on your H-1B start date: the I-797A with its I-94 shows the grant, and the first H-1B pay stubs show work began as approved. If the RFE asks about STEM OPT, your former school's DSO can help with I-20 and SEVIS records; how to answer is the attorney's call.

Does a new employer's RFE look at my old employer's pay?

Yes, it can. A transfer petition asks USCIS to extend your stay, so your status under the old petition is part of the question. Portability under 8 CFR 214.2(h)(2)(i)(H) covers a worker "who has not been employed without authorization in the United States from the time of last admission through the filing of the petition for new employment." Deference never applied here: it covers the same parties, and a new employer is a different party.

A payroll portal may lock you out on your last day, so download every stub, W-2 and your separation letter before you leave. EO 14431, in effect as a directive with no implementing guidance found, did not amend any of these regulations.

Worked example: a layoff, a transfer and an RFE

A hypothetical timeline, and what the record must prove at each step:

Date	What happened	What the record must show
2024-10-01	H-1B starts with Employer A after a change of status from STEM OPT	I-797A and its I-94; first H-1B pay stub
2026-08-14	Last day worked and paid at Employer A	Separation letter naming this date; final pay stub
2026-08-15	Day 1 of the 60-day grace period	No work unless something else authorizes it
2026-09-25	Employer B files the transfer I-129 (day 42)	I-797C receipt with the received date
2026-10-13	Day 60 would have ended	Filing came 18 days earlier
2026-10-28	RFE on maintenance of status	The response date printed on the I-797E

The response would draw on Employer A's stubs from 2024-10-01 to 2026-08-14, W-2s for 2024 and 2025, the separation letter, the current I-94, the day count, a payroll note splitting the 2024 W-2 between STEM OPT and H-1B wages, and Employer B's stubs if work began there under portability. Under PA-2026-05, 12 weeks is the maximum response time, not the standard; the date on your notice governs.

How to assemble your side of an RFE for an H-1B extension or transfer

Your employer (the petitioner) and its attorney answer USCIS, not you. Your job is complete records, fast.

Read the I-797E line by line and list every document and date range it names.
Download your latest I-94 and travel history from the CBP I-94 website and confirm it matches your last entry.
Export every pay stub for the period from current and former payroll portals.
Collect a W-2 for each year; if one is missing, ask the attorney whether an IRS wage and income transcript can stand in until payroll sends a copy.
Write a one-page dated timeline of jobs, worksites, leaves, gaps and filings.
Gather the document behind each gap: leave approval, separation letter, back-pay record or amendment receipt.
Send everything to the attorney well before the RFE's response date, and ask whether premium processing (Form I-907, $2,965 for most I-129 classes on the G-1055 fee schedule) is in play.

Will the deference proposal mean more extension RFEs?

Not as law yet. "Removing Deference to Prior USCIS Determinations of Eligibility" (RIN 1615-AD26) was published as a proposed rule on 2026-10-14; comments close 2026-11-13. It would remove only 8 CFR 214.1(c)(5), and current deference applies until a final rule says otherwise. DHS estimates a 2.9-percentage-point rise in the RFE rate, about 6,044 additional RFEs a year across 208,429 affected petitions, and says the change "would not prohibit USCIS officers from considering a prior approval where relevant" (full text).

Common misconception, then correction. "If deference goes, my extension will get a status RFE" mixes up two rules. Deference covers a prior determination of eligibility on the same parties and facts. The proposal itself restates the separate status rule: an extension "is ordinarily only granted if the alien is still in, and has maintained, his or her nonimmigrant status at the time the request is filed." Status since your last approval is a new fact, so in our reading officers could always ask about it; the proposal mainly reopens questions such as specialty occupation. See our explainer on the H-1B extension deference proposal, and the H-1B RFE response playbook for every RFE type.

Common mistakes

Sending selected or annotated pay stubs. Gaps invite a second request; explanations go in a separate document.
Using an old I-94. Each entry creates a new record.
Reading W-2 Box 1 as your salary. Pre-tax deductions and FICA-exempt F-1 months change it.
Waiting to ask a former employer for records. Access often ends on your last day.
Travelling while the RFE is pending without asking the attorney. Leaving the US can affect the extension-of-stay request even if the petition is approved.

Frequently asked questions

Why did my H-1B extension get an RFE about maintenance of status?

An extension of stay cannot be approved if you failed to maintain H-1B status, and 8 CFR 214.1(c)(6) requires evidence of it, such as pay stubs and W-2s. An RFE usually means that evidence left a period uncovered or did not match the petition. Deference still applies as of 2026-11-01, but in our reading it never covered events after the last approval.

How many pay stubs do I need to send?

No regulation or form sets a number. The RFE names the period and documents it wants, and the response is often consecutive stubs for that period plus a W-2 for each year. A gap is explained in writing, never left out.

What if I had a gap in pay or was on unpaid leave?

It depends on why the pay stopped. The 60-day grace period of 8 CFR 214.1(l)(2), in effect as of 2026-11-01 (ending it is only proposed), covers a layoff followed by a new petition inside the window. Approved unpaid leave is shown with its approval and dates; unpaid bench time is pay the employer owed. An immigration attorney should review each.

Does a new employer's RFE look at my old employer's pay?

Yes, it can. A transfer asks USCIS to extend your stay, so your status under the old petition is part of the question, and H-1B portability requires no unauthorized employment from your last admission through the new filing. Save your old employer's pay stubs, W-2s and separation letter before payroll access ends.

Will the deference proposal mean more extension RFEs?

DHS estimates about 6,044 additional RFEs a year across 208,429 affected petitions, but the rule is only proposed (published 2026-10-14, comments close 2026-11-13) and current deference still applies. It would remove only 8 CFR 214.1(c)(5); the status-evidence rule in (c)(6) stays.

Sources

How we checked this: on 2026-11-01 we read the regulations on Cornell LII, the USCIS Policy Manual chapter, PA-2026-05, the USCIS I-129 RFE data file and the Federal Register documents above, and quoted their text directly.

This is general information, not legal or tax advice. Your own I-797, I-94 and RFE notice, and your employer's immigration attorney, govern your case.

If an RFE has you rethinking your next move, or you are on OPT or STEM OPT and looking for an employer that sponsors H-1B, F1Jobs helps international candidates run a focused search.