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I797B approved but no change of status
Hi Guys,
I hope someone can guide me. It is a little long so please bear with me. Any advice would be greatly appreciated. I entered US in dec 2000 on F1 visa for my masters and was on it till June 30, 2005. My OPT started July 1st 2004 and ended on June 30, 2005. My company filed for my H1B in August 2004 and was approved and the valid date was from Jan 12, 2005 to sept 30, 2007. I was still using my OPT as i did not know that from the start date of your H1B your OPT can not be used. Luckily or unluckily i found out in sept 2005 that I received an I797B instead of an I797A and thus an I94 has not been issued. By then my OPT has already expired(June 30, 2005). Since i received an I797B i was still in F1 status till june 30, 2005 and my work during this period for an employer other than my company that filed for my H1B is not considered illegal. I later found out after talking to my company in sept 2005 that they filed my I129 wrong by checking the wrong box and not checking the box for change of status. In sept 2005 i filed a petition(Premium processing) again at Nebraska through an attorney asking for a change of status saying that it was the fault of my employer as they filed the application wrong and no fault of the beneficiary(which is me). INS replied back in 5 days saying that they are not going to issue a change of status but they did issue me a new I797B( Valid Date 10/05/2005 to 09/30/2005) and asked me to get it stamped from outside the country. Along with the I797B they also gave me the reason saying that since i was about 90 day over the expiration of my OPT they will not give me a change of status but they did mention in the letter saying
"The petitioner filed an I129 H1B petition on Aug 30, 2004 for the beneficiary and requested Toronto consular notification. This petition was approved on January 12, 2005, but the beneficiary did not travel to Toronto to pick up his visa. Instead, the petitioner filed this new premium petition as an ammended petition, on sept 30, 2005(more than eight months later) and is requesting that the beneficiary be given a change of status.
The beneficiary's F1 Status expired on June 30, 2005. This premium filing is 3 months after the beneficiary's F1 status expiration. Counsel is requesting that the service excuse the beneficiary's status expiration and apply discretionary consideration Nunc Pro Tunc for two reasons. 1) The employer filed the initial H1B in error by checking the box for consular processing as opposed to change of status 2)because the beneficiary relied upon his employer to file his H1B change of status ans only recently learned of the error the petitioner has made.
The record reflects the petitioner was aware upon receiving the notice of approval, that the beneficiary's H1B status was approved and that the consulate in Toronto was notified. Counsel's request for relief Nunc Pro Tunc is not plausible, due to the lengthy time between the approval notification sent to the petitioner and the filing of this petition.
The beneficiary in this case has failed to maintain the status previously accorded because his/her authorized period of stay has expired 3 months prior to the filing of this petition. Furthermore, no justifiable reason has been given for the delay in submitting this request for a change of status and/or attempting to contact the service to rectify this matter.
It was decided that the petitioner bears the burden of proof for the benefit sought in visa petition proceedings. The petitioner in this proceeding has clearly not met such burden.
This denial is without prejudice to the filing of a new petition accompanied by the appropiate fee and requisite documentaion."
The first I797B issued has Toronto as the Consulate on it. The new I797B has Chennai as the Consulate. I called the US Consulate in Canada twice and e-mailed the US Consulate in Canada to see if they would entertain my Visa even though my I797B has Chennai on it. All three of them said i can goto Canada to get my stamping. So i got an appointment in Nov for an US Consulate in Canada.
Since i have not gotten paid after my OPT expired i do not have paystubs after june 30, 2005 from my company. But if i worked and got paid after June 30, 2005 it would be considered illegal as i do not have a new I94. My old I94 was from my F1 which had D/S, which was till june 30, 2005.
My question:
When i goto get my visa stamped in canada and they ask me for my paystubs from my employer, which i dont have how will it effect my visa stamping. What can i say if the Interviewer asks me what was i doing in the 3 months after june 30, 2005. How considerate are the people in the US Consulate in Calgary. Should i goto to Canada or should i just goto Chennai? which would be a better option.
I hope someone can guide me. It is a little long so please bear with me. Any advice would be greatly appreciated. I entered US in dec 2000 on F1 visa for my masters and was on it till June 30, 2005. My OPT started July 1st 2004 and ended on June 30, 2005. My company filed for my H1B in August 2004 and was approved and the valid date was from Jan 12, 2005 to sept 30, 2007. I was still using my OPT as i did not know that from the start date of your H1B your OPT can not be used. Luckily or unluckily i found out in sept 2005 that I received an I797B instead of an I797A and thus an I94 has not been issued. By then my OPT has already expired(June 30, 2005). Since i received an I797B i was still in F1 status till june 30, 2005 and my work during this period for an employer other than my company that filed for my H1B is not considered illegal. I later found out after talking to my company in sept 2005 that they filed my I129 wrong by checking the wrong box and not checking the box for change of status. In sept 2005 i filed a petition(Premium processing) again at Nebraska through an attorney asking for a change of status saying that it was the fault of my employer as they filed the application wrong and no fault of the beneficiary(which is me). INS replied back in 5 days saying that they are not going to issue a change of status but they did issue me a new I797B( Valid Date 10/05/2005 to 09/30/2005) and asked me to get it stamped from outside the country. Along with the I797B they also gave me the reason saying that since i was about 90 day over the expiration of my OPT they will not give me a change of status but they did mention in the letter saying
"The petitioner filed an I129 H1B petition on Aug 30, 2004 for the beneficiary and requested Toronto consular notification. This petition was approved on January 12, 2005, but the beneficiary did not travel to Toronto to pick up his visa. Instead, the petitioner filed this new premium petition as an ammended petition, on sept 30, 2005(more than eight months later) and is requesting that the beneficiary be given a change of status.
The beneficiary's F1 Status expired on June 30, 2005. This premium filing is 3 months after the beneficiary's F1 status expiration. Counsel is requesting that the service excuse the beneficiary's status expiration and apply discretionary consideration Nunc Pro Tunc for two reasons. 1) The employer filed the initial H1B in error by checking the box for consular processing as opposed to change of status 2)because the beneficiary relied upon his employer to file his H1B change of status ans only recently learned of the error the petitioner has made.
The record reflects the petitioner was aware upon receiving the notice of approval, that the beneficiary's H1B status was approved and that the consulate in Toronto was notified. Counsel's request for relief Nunc Pro Tunc is not plausible, due to the lengthy time between the approval notification sent to the petitioner and the filing of this petition.
The beneficiary in this case has failed to maintain the status previously accorded because his/her authorized period of stay has expired 3 months prior to the filing of this petition. Furthermore, no justifiable reason has been given for the delay in submitting this request for a change of status and/or attempting to contact the service to rectify this matter.
It was decided that the petitioner bears the burden of proof for the benefit sought in visa petition proceedings. The petitioner in this proceeding has clearly not met such burden.
This denial is without prejudice to the filing of a new petition accompanied by the appropiate fee and requisite documentaion."
The first I797B issued has Toronto as the Consulate on it. The new I797B has Chennai as the Consulate. I called the US Consulate in Canada twice and e-mailed the US Consulate in Canada to see if they would entertain my Visa even though my I797B has Chennai on it. All three of them said i can goto Canada to get my stamping. So i got an appointment in Nov for an US Consulate in Canada.
Since i have not gotten paid after my OPT expired i do not have paystubs after june 30, 2005 from my company. But if i worked and got paid after June 30, 2005 it would be considered illegal as i do not have a new I94. My old I94 was from my F1 which had D/S, which was till june 30, 2005.
My question:
When i goto get my visa stamped in canada and they ask me for my paystubs from my employer, which i dont have how will it effect my visa stamping. What can i say if the Interviewer asks me what was i doing in the 3 months after june 30, 2005. How considerate are the people in the US Consulate in Calgary. Should i goto to Canada or should i just goto Chennai? which would be a better option.
