H1B I129 Petition expired after Approval

[chaitanyacn]

Hi Seniors,


I have applied for a H1B in 2008 and the I129 petition got approved. I had to wait for a long time to attend the Visa Interview and attended it in the month of June in 2010. I got a 221G Yellow at Hyderabad Consulate and further it had to be processed in Administrative Processing. Now, my case got approved in Administrative Processing in October 2011 but my Petition expired in September 2011. Please let me know the further steps/processes.


Thank you

[kabkaba]

Your employer will have to file another petition and then you will probably have to apply for Visa again. The petition will not be subject to annual cap and can be filed any time with immediate start date.

[chaitanyacn]

H1B I129 Petition expired after Approval

Thank you for the reply Kabkaba,

May I please know if the current Petition can be extended as my Application got approved for visa processing in Administrative processing in October 2011, after the expiry date of the I129 petition i.e September 2011.

Thank you

[shervin143]

Extension is a term used when you are already in U.S on a particular status (H1B status in your case). A new H1B petition can be filed by your employer using the CAP from the previous approval notice and request an immediate start date. The current petition need not have to be valid to file a new petition using the same CAP.

Thank you for the reply Kabkaba,

May I please know if the current Petition can be extended as my Application got approved for visa processing in Administrative processing in October 2011, after the expiry date of the I129 petition i.e September 2011.

Thank you

[chaitanyacn]

H1B I129 Petition expired after Approval

Shervin,

Thank you for the information. I have a couple of concerns here:

- As you said, A new H1B petition can be filed by my employer using the CAP from the previous approval notice requesting an immediate start date, So the current approval I got for my case in Administrative processing, will work/be valid for this new petition. Is it correct ?

- I have already appeared for the Visa Interview in June 2010. It resulted for a 221G yellow, further into Administrative processing and now it got approved after the petition expired. Now that I got the approval notice, I am assuming that I will only be having to send my passport for Visa Stamping. Else, will I have to appear for the Visa Interview again after filing for a new H1B petition using the CAP from the previous approval notice?

Thank you again.

[kabkaba]

Shervin,

Thank you for the information. I have a couple of concerns here:

- As you said, A new H1B petition can be filed by my employer using the CAP from the previous approval notice requesting an immediate start date, So the current approval I got for my case in Administrative processing, will work/be valid for this new petition. Is it correct ?

It may not be, since the previous Visa application was based on previous petition. You may need to apply again and hope that it does not go into 221g again. Were you asked for any documents the last time? Was it related to your employer?

- I have already appeared for the Visa Interview in June 2010. It resulted for a 221G yellow, further into Administrative processing and now it got approved after the petition expired. Now that I got the approval notice, I am assuming that I will only be having to send my passport for Visa Stamping. Else, will I have to appear for the Visa Interview again after filing for a new H1B petition using the CAP from the previous approval notice?

Has the consulate sent you any letter or e-mail stating that your Visa is approved? Does it ask you to submit your passport? If not, unfortunately you will have to apply for Visa again after petition approval.

Thank you again.

The only way to know is ask the consulate about this Visa approval that you mention.

[chaitanyacn]

Hi Kabkaba & Shervin,


It may not be, since the previous Visa application was based on previous petition. You may need to apply again and hope that it does not go into 221g again. Were you asked for any documents the last time? Was it related to your employer?

I was not asked for any documents in the Visa Interview. The VO gave me an Yellow 221G based on which I had to submit some documents related to my employer. I have submitted those as well. Then the consulate contacted my employer for some questions in Administrative processing. Then, it got approved in Oct 2011. While the case was in Adm' processing itself, the I129 Petition got expired in Sept 2011.

Has the consulate sent you any letter or e-mail stating that your Visa is approved? Does it ask you to submit your passport? If not, unfortunately you will have to apply for Visa again after petition approval.

As what I know, my employer has received an approval notice which reads as follows:

""This, is to advise you that we have reaffirmed our previous decision on the above application or petition .which the Department of State had previously returned for review. We have forwarded the case back to the Department of State for action.

The Small Business Regulatory Enforcement and Fairness Act established the Office of the National Ombudsman (ONO) at the Small Business Administration. The ONO assists small businesses with issues related to federal regulations. If you are a small business with a comment or complaint about regulatory enforcement, you may contact the ONO at www.ombudsman.sba.gov or phone YYYY YYYY ZZZ or fax YYYY YYYY ZZZ.

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition and/or supporting documentation to ensure conformity with applicable laws, rules, regulations,and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation,rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.""

My employer sent me a scanned copy of the same.

Please let me know of my further proceedings on this.

Thank you.

[kabkaba]

Visa and petition are two different things.
You applied for Visa at the consulate (department of state) and before that your employer filed the petition with USCIS. (USCIS are Consulate are different).
What has happened here is that the Consulate thought that the petition is not appropriate and asked USCIS to revoke the petition. USCIS contacted your employer (not consulate). USCIS then re-affirmed the petition. So the petition was re-affirmed but it was already expired. USCIS sent the re-affirmed petition to department of State i.e. the consulate, but since it has expired the consulate cannot do anything about it. Petition re-affirmation does not mean Visa approval.
Normally if Visa is denied, the consulate will inform you about the decision. The letter that you received from consulate at the time of interview is a temporary denial letter. The reason for denial is 221g. Normally if 221g is cleared later, a Visa is issued. But in this exceptional case Visa cannot be issued because the underlying petition is re-affirmed but expired.

Now your employer will have to file another petition. The petition can be exempt from annual cap as you are already cap-counted. Any employer can do this. After that is approved, you will again have to apply for Visa. After Visa is approved, you can travel to US.

[chaitanyacn]

H1B I129 Petition expired after Approval

Thank you Kabkaba,

That was very informative. I understand that a new petition will have to be filed. So the process starts altogether again? Will I be having to book a slot and appear for the visa interview ? Good to know that this petition will be annual cap exempted. I hope that the new petition can be filed with reference to the approval I currently got. Please correct. What is the further process ?

Thank you.

[kabkaba]

Same process as before.