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TLDR : Employed by company A, accepted offer from company B. Already past 6 years on H1B, so Company B filed extension of stay based on past approved I140. Was traveling outside USA and reached 1 day after the petition reached USCIS. Transfer petition was approved but extension of stay was denied.
Detailed Explanation:
Citizenship: India
Visa Information: First started on H1B on June 2007. 2 Approved I140's from past employers PD - JUN 2008. Current Visa in the PP is for my current employer (Company A) and valid till May 2016.
Case Details:
I accepted an offer from Company B, and since I am past my 6 year period Company B applied for my h1 transfer petition and extension of stay. However I was traveling and I re-entered United States using my current employer Company A's visa on 18th Sept with an I94 valid to May 2016, however my transfer petition reached USCIS on 17th Sept and was approved on 23rd Sept. Then on 26th Sept received a letter from USCIS stating that my extension of stay has been denied since I need to be inside United States when applying for extension of stay.
I have been told by Company B's lawyer that although I am still employed by Company A, my visa status is invalid and I need to leave the country asap and apply for a brand new visa at the consulate in my home country using Company B's I797. I have explained the situation to my current employer Company A and Company A is more than willing to retain me.
Following is a redacted copy of the letter:
NOTICE OF DECISION DENIAL OF REQUEST FOR EXTENSION OF STATUS
This notice is in reference to the Form 1-129, Petition for Nonimmigrant Worker, filed with the U. S. Citizenship and Immigration Services ("USCIS") seeking classification as a specialty occupation worker pursuant to 101(a) (15) (H)(i)(b) of the Immigration and Nationality Act, with a concurrent request for extension of nonimmigrant status.
Title 8, Code of Federal Regulations ("8 C.F.R.") 214.2 (h) (15) , "Extension of stay" states:
(i) General. The petitioner shall apply for extension of an alien's stay in the United States by filing a petition extension on Form 1-129 accompanied by the documents described for the particular classification in paragraph (h)(15)(ii) of this section. The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary's extension of stay. The beneficiary must be physically present in the United States at the time of the filing of the extension of stay. Even though the requests to extend the petition and the alien's stay are combined on the petition, the director shall make a separate determination on each. If the alien is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may request the director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa. When the total period of stay in an H classification has been reached, no further extensions may be granted. (Emphasis added) In the instant case, USCIS's records indicate that the beneficiary was admitted to the United States on August XX, 2014 and subsequently departed on August XX, 2014. The instant 1-129 petition was filed with USCIS on September 17, 2014, a date subsequent to the beneficiary's departure from the United States. Although the beneficiary re-entered the United States on September 18, 2014, there is no record that the beneficiary re-entered the United States prior to the filing of the current 1-129 petition. As noted above, USCIS is precluded from granting an extension of stay where the beneficiary is not physically present at the time of filing. Therefore, the requested extension of stay may not be approved.
Please note that the approved 1-129 petition for H-1B nonimmigrant classification has been forwarded to the United States Consulate in Mumbai, India as requested in Part 4 of the Form I-129.
My questions:
A) If I turn down the offer from Company B and continue working for Company A - am I out of status ?
B) If am indeed out of status and wish to continue working for Company A. Would leaving the country and re-entering suffice since I have Company A's visa valid till May 2016 in my PP.
C) If I go to Mumbai consulate and give an interview for Company B's visa and if it is rejected since I failed to maintain status, will my Company A visa become invalid.
Really appreciate any answers, unfortunately got this news on a Friday afternoon so taking legal advice from a real attorney is not possible and I do not ideally want to accrue any more out of status days and would prefer leaving the country asap if I am indeed out of status.
Thank you very much.
Detailed Explanation:
Citizenship: India
Visa Information: First started on H1B on June 2007. 2 Approved I140's from past employers PD - JUN 2008. Current Visa in the PP is for my current employer (Company A) and valid till May 2016.
Case Details:
I accepted an offer from Company B, and since I am past my 6 year period Company B applied for my h1 transfer petition and extension of stay. However I was traveling and I re-entered United States using my current employer Company A's visa on 18th Sept with an I94 valid to May 2016, however my transfer petition reached USCIS on 17th Sept and was approved on 23rd Sept. Then on 26th Sept received a letter from USCIS stating that my extension of stay has been denied since I need to be inside United States when applying for extension of stay.
I have been told by Company B's lawyer that although I am still employed by Company A, my visa status is invalid and I need to leave the country asap and apply for a brand new visa at the consulate in my home country using Company B's I797. I have explained the situation to my current employer Company A and Company A is more than willing to retain me.
Following is a redacted copy of the letter:
NOTICE OF DECISION DENIAL OF REQUEST FOR EXTENSION OF STATUS
This notice is in reference to the Form 1-129, Petition for Nonimmigrant Worker, filed with the U. S. Citizenship and Immigration Services ("USCIS") seeking classification as a specialty occupation worker pursuant to 101(a) (15) (H)(i)(b) of the Immigration and Nationality Act, with a concurrent request for extension of nonimmigrant status.
Title 8, Code of Federal Regulations ("8 C.F.R.") 214.2 (h) (15) , "Extension of stay" states:
(i) General. The petitioner shall apply for extension of an alien's stay in the United States by filing a petition extension on Form 1-129 accompanied by the documents described for the particular classification in paragraph (h)(15)(ii) of this section. The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary's extension of stay. The beneficiary must be physically present in the United States at the time of the filing of the extension of stay. Even though the requests to extend the petition and the alien's stay are combined on the petition, the director shall make a separate determination on each. If the alien is required to leave the United States for business or personal reasons while the extension requests are pending, the petitioner may request the director to cable notification of approval of the petition extension to the consular office abroad where the alien will apply for a visa. When the total period of stay in an H classification has been reached, no further extensions may be granted. (Emphasis added) In the instant case, USCIS's records indicate that the beneficiary was admitted to the United States on August XX, 2014 and subsequently departed on August XX, 2014. The instant 1-129 petition was filed with USCIS on September 17, 2014, a date subsequent to the beneficiary's departure from the United States. Although the beneficiary re-entered the United States on September 18, 2014, there is no record that the beneficiary re-entered the United States prior to the filing of the current 1-129 petition. As noted above, USCIS is precluded from granting an extension of stay where the beneficiary is not physically present at the time of filing. Therefore, the requested extension of stay may not be approved.
Please note that the approved 1-129 petition for H-1B nonimmigrant classification has been forwarded to the United States Consulate in Mumbai, India as requested in Part 4 of the Form I-129.
My questions:
A) If I turn down the offer from Company B and continue working for Company A - am I out of status ?
B) If am indeed out of status and wish to continue working for Company A. Would leaving the country and re-entering suffice since I have Company A's visa valid till May 2016 in my PP.
C) If I go to Mumbai consulate and give an interview for Company B's visa and if it is rejected since I failed to maintain status, will my Company A visa become invalid.
Really appreciate any answers, unfortunately got this news on a Friday afternoon so taking legal advice from a real attorney is not possible and I do not ideally want to accrue any more out of status days and would prefer leaving the country asap if I am indeed out of status.
Thank you very much.
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