Issued with an rfe for travelling out of country after applying for H1 visa

[sunitaboda]

Hi,

I am Sunita and am currently on H4 visa. My employer filed for my H1 visa in April and unfortunately I was in India when my file was picked in the lottery. I am issued with RFE.

Here is the Query Information:

You Filed the instant petition on April/11/2016 seeking to change the beneficiary's status from H4- to H1B, and extend the beneficiary stay in the US.

How ever a review of the systems shows that the beneficiary departed the US on Feb 22 2016 and returned on April 17 2016. As seen it appears that the beneficiary was not physically present in US at the time that the petition was filed.

it appears that the beneficiary is not eligible for the requested change on status and extension of stay because he/she has not met the physical presence requirement. As such provide evidence that the beneficiary has not violated the physical presence requirement.

Please let me know what can be done. Thanks in advance!

[raghvi]

Hi,

I am Sunita and am currently on H4 visa. My employer filed for my H1 visa in April and unfortunately I was in India when my file was picked in the lottery. I am issued with RFE.

Here is the Query Information:

You Filed the instant petition on April/11/2016 seeking to change the beneficiary's status from H4- to H1B, and extend the beneficiary stay in the US.

How ever a review of the systems shows that the beneficiary departed the US on Feb 22 2016 and returned on April 17 2016. As seen it appears that the beneficiary was not physically present in US at the time that the petition was filed.

it appears that the beneficiary is not eligible for the requested change on status and extension of stay because he/she has not met the physical presence requirement. As such provide evidence that the beneficiary has not violated the physical presence requirement.

Please let me know what can be done. Thanks in advance!

Well, it only means and that your petition may still be approved but a COS may not be granted, that in turn means that you cannot start working as soon as H1 is approved. It may sound counter intuitive but as you left US while both petition and COS were pending, the COS got denied. Now, if this happens, in order to work, you have two options, refile the COS from H4 to H1 ( no need to go through lottery again) , OR, leave US, go for stamping and re enter US using your freshly stamped H1.

This is my opinion not legal advice.

[sunitaboda]

Thanks a lot