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View Full Version : H1 extension denied and Out of Status. Please advise?


Radha2013
02-28-2013, 08:02 AM
Hello, I am in deep trouble and need advice from you.

First I797 - 10/16/2006 to 09/30/2009 (3 years)

Second I797 - 10/01/2009 TO 09/30/2012 (3 years)

Have valid I-797 - till - Sep 30, 2012 ( now expired right )
Valid I-94 --------till - Sep 30, 2012 ( now expired right )

Applied for extension in --- May 2012 ( 5months before I-94 expiry date) During the last 6 years, i was away from US for 2 years.
So filed for another H1 extension reclaiming the days I was away from US (which gets me 2 years)
Got RFE on Nov 1, 2012
Got denied on Feb 6, 2013

Applied for premium in -- Feb 19 , 2013
RFE -- Feb 27, 2013

1. How long can i stay? Will the 30 days count from Feb 6th or Feb 27th, 2013.

2. What are my options?

3. Can another company file for my H1?

4. If so, can I be inside the country if it is under processing?

5. What will happen to my GC? Labor is cleared and I140 is filed on 1/29/2013

6. If I out of country, will my I140 be still processed?

7.They say that there should be 1 year gap between old and new H1. Should I have the 1 year gap to apply for another H1?

8. How long can I stay now? We are blessed with a baby boy just 3 weeks ago and so how long can I really stay here?

9. Can I request USCIS tourist visa for a month ?Can I go ahead and file a tourist visa and stay back for a while until the baby and the mother are healthy, if my Company wont file it.

10. Can my H1 company do Consular processing?

Flyingcrow
02-28-2013, 09:52 AM
Hi Radha

Sorry to hear about it. Though I am not a attorney, I will let you know what I know, but I definitely recommend you to talk to your attorney if you haven't already.

1. How long can i stay? Will the 30 days count from Feb 6th or Feb 27th, 2013.

Since your case is still pending, you can stay 240 days from Sep 30 2012, which would be around May 2013. But once a response comes, and if it come out negative. You will have to close business immediately and return. You would have to talk to an attorney to understand how this will affect your future visa applications, since you will be out of status from Oct 1, 2012, since your extension got rejected.


2. What are my options?

3. Can another company file for my H1?
Yes you can, but you have to make that application before the result for this application comes, else it would be considered out of status in between.

4. If so, can I be inside the country if it is under processing?
Yes, as I said 240 days from date of expiry of visa, when case is being processed. But if rejected, it wont be good for you.

5. What will happen to my GC? Labor is cleared and I140 is filed on 1/29/2013
The 140 process will move on, if approved, your company can keep it to recruit you back. But please ponder why it was rejected and now an RFE, since looking at it, a future application with this company might turn out to be tricky as well, right?

6. If I out of country, will my I140 be still processed?
I guess yes, unless your company revokes it.

7.They say that there should be 1 year gap between old and new H1. Should I have the 1 year gap to apply for another H1?

In your case if your 2 year period is as one single duration, or even if it one year, there might be chances to reset. I am not clear on this though.

8. How long can I stay now? We are blessed with a baby boy just 3 weeks ago and so how long can I really stay here?

If your husband is on H1, then you can apply for H4, and you can stay as long as your Husband can.

9. Can I request USCIS tourist visa for a month ?Can I go ahead and file a tourist visa and stay back for a while until the baby and the mother are healthy, if my Company wont file it.

I doubt, but you can get H4, if your spouse is on H1.

10. Can my H1 company do Consular processing?
Yes I believe, since GC is for future position. But looking at the wait times, it wont matter. Best bet, come again on H1 for the same or different company, ask that company to keep the 140, and join them back.

Flyingcrow
02-28-2013, 09:58 AM
Ah, I am sorry, misunderstanding I though u were female by the profile name. So your wife is on H4?

-Please do check out about the tourist visa option with an attorney immidately.
-Try to see if you can apply for another job asap, before the RFE response comes, if positive then no problem.

Radha2013
02-28-2013, 10:19 AM
Yes, my wife is on H4..