H1 B Renewal Denied - LCA was not filed prior to filing I-129 , Pls HELP !!

[ag123]

My First H1-B period got expired Mar 26th 2009.
MY Employer Submitted a renewal application I129 on Aug 23rd 2008. But my employer forgot to send a new LCA with it. On an RFE from USCIS , the new LCA (Dated March 13th, 2009) was send in April 7th with some requested Educational Documents. Now they have denied saying :- "Labor Condition Application was not filed prior to filing I-129 petition - required by 8 CFR 214.2(h)(4)(i).
They have send a I-290B Notice to Appeal or Motion ....What are my options here? Can I restart with a fresh I-129 for renewal or go for the Motion to RE-OPEN .

[txh1b]

MTR and appeal will not fly as the H1b is not approvable without a labor. If you have not stayed past the 6 years, you could get a H1b CP and re-enter with a new stamp. If you have overstayed by more than 180 days, a 3 year ban could apply.

[ag123]

Re :-H1 B Renewal Denied - LCA was not filed prior to filing I-129 , Pls HELP !!

I just finished my first 3 yrs on H1B. I-94 expired on Mar 26th ,2009 , that makes it about 47 days (as of Today) after I-94 date ,but then I am in status waiting for the Pending H1- renewal submitted on Aug 23rd 2008.
My employer has a new LCA (valid for 3 more yrs from the first period) for me dated Mar 11 -2009.
Given this situation am I eligible to send in a Fresh I-129 Renewal Petition or do a Motion to Re-OPEN (as suggested in their Denial Letter) ?

[txh1b]

You need to leave US immediately, have them file for a fresh I129 CP case under PP, get a visa stamp (if you don't have one that is valid) and return. That is the best possible solution. You cannot get an extension of stay as your I-94 already expired.

Do not waste time in uncertainity associated with appeals and MTR which will not let you work during the pending period anyway and in case of a denial, consider yourself screwed big time as you would have earned enough illegal stay for a ban of 3-10 years.

As always, discuss with your lawyer.

[ag123]

Re :-H1 B Renewal Denied - LCA was not filed prior to filing I-129 , Pls HELP !!

Thanks for the Advice! Before I take the drastic step that you have suggested i am a serioulsy exploring my options.
The H1 Renewal was denied since my HR department goofed uy and RFEed a new LCA with new dates.
But I already have a approved I-140 along with a PERM ETA 9089 Approval. Can I use the PERM ETA 9089 for Motion to Reopen H1-B and request that the newer LCA was erroneously submitted ?

[txh1b]

Once the I-94 has expired, you don't have any options. What does Perm labor have to do here with your MTR? They are not even related.

Your employer and attorney seem to be both eligible for some reading and classes. Once they got the RFE, the wisest bet would have been to file for a new H1b extension with the labor when your I-94 was still possibly valid.

[ag123]

Re :-H1 B Renewal Denied - LCA was not filed prior to filing I-129 , Pls HELP !!

You are 100% correct on my HR and Attorney.
The denial letter says that I have 33 days from the letter date to File an appeal.
Does this give me legal status here for those many days ?
Thanks

[txh1b]

Appeals are kinda confusing. You can remain in US provided you take the risk. In the case of a denial, you will most likely earn a 10 yr ban.

[ag123]

Re :-H1 B Renewal Denied - LCA was not filed prior to filing I-129 , Pls HELP !!

Thanks ....but from the denial letter dated May 05 2009 , when do I go out of Status ? They day I have 33 days to file appeal or the denial is final !!

[txh1b]

I have already told you, the date I-94 expires is when you were technically illegal from in case of the denial of appeal.

[dianaphantm]

Please

MTR and appeal will not fly as the H1b is not approvable without a labor. If you have not stayed past the 6 years, you could get a H1b CP and re-enter with a new stamp. If you have overstayed by more than 180 days, a 3 year ban could apply.

Hello Sir,
My H1B renewal request I129 got rejected in September 2009 and the cited reasons were:1) My company wasnt able to properly establish that i was on a project, although i were and we had everything in place including pay stubs and tax returns.
2) They considered my medical leaves as bench period.
I instantly moved out of US as per law in October after receiving the I129 denial notice in my hand and filed an MTR I290B through my attorney in november. I just got the approval for the same couple of days back.At this point i am planning to get visa stamped again here in India and i think i need to get rid of my inefficient and unprofessional employer as well and find some good employer. Would it be advisable to do so at this stage ? I am really scared and tensed as after googling i found that i may face tricky questions in the embassy over my I129 denial. Could you please advise me what should i do and what approach should i take to keep my career safe. Thanks in advance.

[UKannan]

If this guy knows every thing why he is asking questions after questions? Are you fooling around?