H1 Approved but Extension of Stay Denied

[san1207]

Hi,

My H1 approved with the new employer but didn't get I-94 extension card, the letter from USCIS says that I was out of status as on 3/29/09.
1. My previous employer (A) went out of business as of 3/28/09 and my I-129 filed on 3/16/09 with new employer (B). But I couldn't join the new company (B) till 5/17/09 as I needed to be present to take care of my new born kid's medical condition as well as my wife.
2. Got an RFE and was replied to USCIS as on 6/3/09 by the new employer B.
3. As on 9/16/09 got the Approval Sent but not the Extension of stay for me and my wife's I-539 had denial notice sent to my residence saying the I was out of status as of 3/29/09.
4. Me and my wife have valid I-94 till 11/18/09 also previous employer's visa stamping for the same date.

Here is the snapshot of the letter from USCIS for reference:
===================================================
"It is ordered by the Director of the California Service Center, United States Citizenship and Immigration Services (“USCIS”) that the extension of stay requested fox the beneficiary be denied for the following reason(s):

The petitioner filed Form 1-129, Petition for a Nonimmigrant Worker, for the beneficiary with a request for extension of his or her nonimmigrant status as an H-I B alien performing services in a specialty occupation
Title 8, Code of Federal Regulations (“8 C.F.R.”) 214. 1(c)(4) states that:

An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed.,

The beneficiary’s prior H- lB status with (A) was valid from February 15, 2007 through November 18, 2009 The current H-lB petition requesting a change of employer was submitted on March 16, 2009. In response to the request for initial evidence the beneficiary indicated that his employment with
(A) was terminated on March 28, 2009 The evidence also indicates that the new employer (B) delayed the beneficiary’s employment start date until May 17, 2.009 as requested by the beneficiary because of a family illness. Therefore, the beneficiary is out of HIB status between the end date
with his prior employer on March 28, 2009 and the start date with the new employer on May 17, 2009.
Therefore, the beneficiary is out ofHlB status as of March 29, 2009.

The beneficiary has failed to maintain his nonimmigrant status and is therefore ineligible for the requested extension of stay Accordingly, the request for extension of stay is denied

Please note that the approved 1-129 petition for classification of the beneficiary as an H-i B nonimmigrant has been forwarded to the U S Consulate in Chennai, India as requested in Part 4 of the Form 1-129..

This decision leaves the beneficiary without lawful immigration status and he or she is theiefoie present in the
United States in violation of the law The beneficiary is required to depart the United States. Remaining in the United States without authorization may affect his or her ability to return to the United States in the future."
====================================================

So my concerns are

1. Can I transfer my H1 to a new employer (C) with the approved I-797 of the current employer as I have valid I-94 till 11/18? even though the extension of stay is denied?
2. If I was out of status then why would the I-797 was approved? These two are different things?
3. Does the unlawful stay counter starts for me and my wife as of 3/29/09 or after the I-94 validity date 11/18/09? Because my wife's I-539 got denial notice as primary beneficiary didn't maintain the status.
3. Is it possible that H1 gets rejected with new Employer (C) based up on the I-797 of the current employer?

Please help me understand the situation and about the options that I have under the given situation.

Appreciate your help....

[txh1b]

Hi,

My H1 approved with the new employer but didn't get I-94 extension card, the letter from USCIS says that I was out of status as on 3/29/09.
1. My previous employer (A) went out of business as of 3/28/09 and my I-129 filed on 3/16/09 with new employer (B). But I couldn't join the new company (B) till 5/17/09 as I needed to be present to take care of my new born kid's medical condition as well as my wife.
2. Got an RFE and was replied to USCIS as on 6/3/09 by the new employer B.
3. As on 9/16/09 got the Approval Sent but not the Extension of stay for me and my wife's I-539 had denial notice sent to my residence saying the I was out of status as of 3/29/09.
4. Me and my wife have valid I-94 till 11/18/09 also previous employer's visa stamping for the same date.

Here is the snapshot of the letter from USCIS for reference:
===================================================
"It is ordered by the Director of the California Service Center, United States Citizenship and Immigration Services (“USCIS”) that the extension of stay requested fox the beneficiary be denied for the following reason(s):

The petitioner filed Form 1-129, Petition for a Nonimmigrant Worker, for the beneficiary with a request for extension of his or her nonimmigrant status as an H-I B alien performing services in a specialty occupation
Title 8, Code of Federal Regulations (“8 C.F.R.”) 214. 1(c)(4) states that:

An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed.,

The beneficiary’s prior H- lB status with (A) was valid from February 15, 2007 through November 18, 2009 The current H-lB petition requesting a change of employer was submitted on March 16, 2009. In response to the request for initial evidence the beneficiary indicated that his employment with
(A) was terminated on March 28, 2009 The evidence also indicates that the new employer (B) delayed the beneficiary’s employment start date until May 17, 2.009 as requested by the beneficiary because of a family illness. Therefore, the beneficiary is out of HIB status between the end date
with his prior employer on March 28, 2009 and the start date with the new employer on May 17, 2009.
Therefore, the beneficiary is out ofHlB status as of March 29, 2009.

The beneficiary has failed to maintain his nonimmigrant status and is therefore ineligible for the requested extension of stay Accordingly, the request for extension of stay is denied

Please note that the approved 1-129 petition for classification of the beneficiary as an H-i B nonimmigrant has been forwarded to the U S Consulate in Chennai, India as requested in Part 4 of the Form 1-129..

This decision leaves the beneficiary without lawful immigration status and he or she is theiefoie present in the
United States in violation of the law The beneficiary is required to depart the United States. Remaining in the United States without authorization may affect his or her ability to return to the United States in the future."
====================================================

So my concerns are

1. Can I transfer my H1 to a new employer (C) with the approved I-797 of the current employer as I have valid I-94 till 11/18? even though the extension of stay is denied?
2. If I was out of status then why would the I-797 was approved? These two are different things?
3. Does the unlawful stay counter starts for me and my wife as of 3/29/09 or after the I-94 validity date 11/18/09? Because my wife's I-539 got denial notice as primary beneficiary didn't maintain the status.
3. Is it possible that H1 gets rejected with new Employer (C) based up on the I-797 of the current employer?

Please help me understand the situation and about the options that I have under the given situation.

Appreciate your help....

1. No. You need to leave the US immediately and get a visa stamp and return to work for the employer. No other extensions or status changes will be approved in the US. If you already have a valid visa stamp, it is just a matter of travel and return with a new I-94 for the employer B from POE.
2. Yes, EOS is different. The I797B approval is for consular processing.
3. There is no point in applying for EOS from C as you are already out of status and the USCIS letter clearly states the section of the law that details why your EOS was denied. How do you think another EOS will be approved when you are clearly out of status?

#1 is the one and only one option you have.

[san1207]

Thanks for your prompt response....

for the #1 above, I have valid stamp of the Employer A not the current employer B. So I'm worried if the Stamping gets rejected what are the options in this case?

Please help me understand the options...

Thanks,
....

[txh1b]

Did you read #1? Please do read first. Did it not imply if you have a valid stamp, a restamping is not needed in some form?

[immi_ca]

San1207 DCan you share your Visa Tamping Exp

San1207 I am also in the same boat as you were in last year. I am going for Visa stamping nect week. Can you please share your experience and anything which I need to take care of.

Your quick response is really appreciated in this regard.

[prathima1]

H1b visa approved but extension of stay was denied

I am also facing the same problem my h1b visa was approved from company B but the extesion of my stay was denied because of the mistake made by Company A .I am planning to go to India for visa stamping so any one please suggest me how can i approach in India.

TIA,
Prathima.

[arcad]

h1b extension denial

san1207: When you looked at the USCIS online status portal..... Did it say that your H1b was approved but extension of stay was denied? I might be in a similar position (extension of stay but underlying h1b approved) however the USCIS portal says my application was ...."mailed you a denial decision notice for this case I129 PETITION FOR A NONIMMIGRANT WORKER". I'm not sure whether this just means my underlying h1b was denied on top of the extension of stay. Does anyone have experience with this?

[vishal27580]

I am also facing the same problem my h1b visa was approved from company B but the extesion of my stay was denied because of the mistake made by Company A .I am planning to go to India for visa stamping so any one please suggest me how can i approach in India.

TIA,
Prathima.

Did anyone went for stamping? Which location and how was your experience? I am in same boat with you guys

[pankajsehgal]

Did anyone went for stamping? Which location and how was your experience? I am in same boat with you guys

What was the outcome for you Vishal ? please reply...i m in same situation

[vishal27580]

What was the outcome for you Vishal ? please reply...i m in same situation

Hello Pankaj,

My case was in premium processing so we sent notarized affidavit to USCIS saying (format was provided by attorney) I am present in US and been never out of status"
Along with that sent few details
Credit card transactions to prove was in US
Bank account details for 2 months
Rent slips for 2 months and all.

Within few working days got reply from USCIS that it is mistake from their side and sent me new approval with I-94 and approved extension.

NOTE: this is possible for premium processing case.

[bineshasok]

online portal

san1207: When you looked at the USCIS online status portal..... Did it say that your H1b was approved but extension of stay was denied? I might be in a similar position (extension of stay but underlying h1b approved) however the USCIS portal says my application was ...."mailed you a denial decision notice for this case I129 PETITION FOR A NONIMMIGRANT WORKER". I'm not sure whether this just means my underlying h1b was denied on top of the extension of stay. Does anyone have experience with this?

Hi. was your h1b approved but only extension denied?

[bineshasok]

what was your online status?

People who got h1 approved ut cos ot eos denied, what was your online status for it?

[pk1991]

I-797B, H1 approved but extension of stay denied, grade period to leave USA?

Urgent Help and Guidance required !!

Received I-797B approval notice on 05/02/2018 in which below is written:
"I-797B approval notice says (putting exact words): "The above petition has been approved for the classification requested. It has been determined that the named worker(s) are not eligible for the requested extension of stay. You will receive a separate notice explaining the reasons for this determination. Even though the worker(s) are ineligible for an extension of stay, they may depart the United States and then apply to reenter in the status shown above. Since the petition indicates the worker(s) will not require a visa to reenter the U.S., we have notified the port of entry or pre-flight inspection office listed above of the approval of the classification"

From above, since my approved notice was on 05/02/2018 and H1 valid from 05/02/2018 to 09/16/2019. Its been 152 days as of now 09/30/2018 and I have been by-mistaken employed by employer here in USA as of now 09/30/2018. My employer forgot I-9 verification when they got this approval notice on 05/05/2018 and they also mailed me this at 05/15/2018 but I thought since they said everything is good, I missed this catch about I-797B. Below are my very important question please please do answer whoever reading this, it is urgent:

1. How much time an employee can stay in USA after getting I-797B notice which stays H1 approved but ineligible for the requested extension of stay ?

2. My employer saying me now to leave USA as soon as possible for my H1B stamping and gave me all necessary documents for it? What should I do please advice.

3. In DS-160 form, There is one question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of U.S. visa?" - from above situation what should I answer ? "YES" or "NO", and if yes then how should I represent this at visa consulate?

4. My employer said I have to select "YES" for above but I read in google about 180 days of rule which says "Overstay of Less Than 180 Days. If your overstay in the United States was for less than six months (180 days), then you are not legally inadmissible in the future. You can be granted another visa, or even a U.S. green card (lawful permanent residence)." - so Have I overstayed in this situation?

5. What are my chances of H1B stamping visa approved in this situation?

Please do reply. I would truly appreciate as it seems I need to definitely leave for my H1B stamping as soon as possible.

[vish1704]

Urgent Help and Guidance required !!

Received I-797B approval notice on 05/02/2018 in which below is written:
"I-797B approval notice says (putting exact words): "The above petition has been approved for the classification requested. It has been determined that the named worker(s) are not eligible for the requested extension of stay. You will receive a separate notice explaining the reasons for this determination. Even though the worker(s) are ineligible for an extension of stay, they may depart the United States and then apply to reenter in the status shown above. Since the petition indicates the worker(s) will not require a visa to reenter the U.S., we have notified the port of entry or pre-flight inspection office listed above of the approval of the classification"

From above, since my approved notice was on 05/02/2018 and H1 valid from 05/02/2018 to 09/16/2019. Its been 152 days as of now 09/30/2018 and I have been by-mistaken employed by employer here in USA as of now 09/30/2018. My employer forgot I-9 verification when they got this approval notice on 05/05/2018 and they also mailed me this at 05/15/2018 but I thought since they said everything is good, I missed this catch about I-797B. Below are my very important question please please do answer whoever reading this, it is urgent:

1. How much time an employee can stay in USA after getting I-797B notice which stays H1 approved but ineligible for the requested extension of stay ?

2. My employer saying me now to leave USA as soon as possible for my H1B stamping and gave me all necessary documents for it? What should I do please advice.

3. In DS-160 form, There is one question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of U.S. visa?" - from above situation what should I answer ? "YES" or "NO", and if yes then how should I represent this at visa consulate?

4. My employer said I have to select "YES" for above but I read in google about 180 days of rule which says "Overstay of Less Than 180 Days. If your overstay in the United States was for less than six months (180 days), then you are not legally inadmissible in the future. You can be granted another visa, or even a U.S. green card (lawful permanent residence)." - so Have I overstayed in this situation?

5. What are my chances of H1B stamping visa approved in this situation?

Please do reply. I would truly appreciate as it seems I need to definitely leave for my H1B stamping as soon as possible.

Hi Pk did you go for stamping? What was the outcome please share.

[hydh1b]

Hi, my name is Shilpa. My situation is exactly as yours. My mind isnt working with what had happened. I was hoping if you could help me with the details. Have you had to go for visa stamping? or came back with the previous visa stamp? were you considered out of status? was there any problem at Port of entry? I would realy appreciate if you could help me wiht the details thanks.