H1B Visa Denied after RFE; Currently on Cooling Period

[Bharathi Raman]

Hello all,

Need your help/ Inputs.

I have recently received a denial of my H1B Visa.

1. My H1B Extension was initially filed and received the acknowledgement on 13-July-2017. [normal processing]
2. My i94, H1B Visa expired on 01-Oct-2017.
    2a. I have got my driver's license extended till 01-Oct-2018.
3. I have received an RFE on 13-Nov-2017.
reason1: wage level; reason2: speciality occupation
4. My Company has responded to RFE and received Acknowledgement from USCIS on 23-Jan-2018. [normal processing]
5. Received Denial on 13-Apr-2018. 

Questions:

a. What are the options available for my case? 
b. What are my possibilities to extend my stay here at US. 
c. If i have to leave US, on what possibilities, i can come back to US and how quick can that be done.
d. What is my status now ? Am I out of status now?
e. Do I have 60 day grace period ?

[Chetan Mehta]

Hi,

 a. What are the options available for my case? 

Since your I-94 card expired way back in October 1st 2017, you NEED TO ACT FAST. You have already crossed 6 months since your I-94 card expired. You may be inviting a '3-year ban'. It all depends on how USCIS looks at it. They have full right to apply this rule from the day your I-94 card expired and not from the day your H1-B got denied. Your attorney will have to put a strong case requesting USCIS to count from the day your H1-B was denied by USCIS. It's all based on how the officer views it. As per their book, USCIS counts from the day your I-94 card is expired and not based on any pending decisions. 

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html#0-0-0-2633

I was in a similar situation but only good thing in my case was even though my previous employer had revoked my H1-B, I had I-94 card until October 2018. Revoking H1-B doesn't revoke your I-94 card. You are still authorized to stay within US but are not authorized to work.

USCIS people are also considerate human beings. They may consider your April 13th 2018 as the date from when you lost the status. So don't get stressed out.

b. What are my possibilities to extend my stay here at US?

If I were you, I would apply a new H1-B either with a new employer-new position or same employer-new position and wait within US to hear back from USCIS. 

c. If i have to leave US, on what possibilities, i can come back to US and how quick can that be done.

That depends on whether your I-140 is approved, in which year of H1-B are you in etc etc. 

d. What is my status now ? Am I out of status now?

Yes. Technically you are out of status since October 1st 2017. Your employer should have applied under PP way back in July 2017. You will have to request USCIS to use April 13th 2018 as the date when you lost your status. It's very much possible that USCIS will use April 13th 2018 as your date when you lost your status.

e. Do I have 60 day grace period ?

60 day grace period is only when an employee is fired from the job. In this scenario, this rule won't apply unless you can get a 'Employment Termination Letter' from your employer stating that you were fired from the job since your H1-B petition got denied. I doubt if your employer will be willing to give you that letter since they have to bear your flight tickets. But you can still try asking your employer.

Suggestion: Without panicking, hire a good attorney, file a new H1-B under PP, and wait within US. 

 

 

[JoeF]

2 hours ago, Chetan Mehta said:

 

e. Do I have 60 day grace period ?

60 day grace period is only when an employee is fired from the job.

That is NOT true.

The grace period applies when the employment relationship is terminated. It does NOT matter if the person was laid off/fired or quit.

However, since the I-94 is expired, it doesn't apply in this case.

 

[Chetan Mehta]

 

Yes. I guess that correct.  Also it's discretionary rule. So you can't really fight it with USCIS but just make a request to apply this rule in your case. But since your I-94 is also expired, every day is adding unwanted stay. ACT FAST. 

 

[brighton]

@Chetan Mehta

Revoking H1-B doesn't revoke your I-94 card. You are still authorized to stay within US but are not authorized to work.

    -- is this true? 

[Chetan Mehta]

Yes. I had similar issue. My H1-B transfer got denied and my previous H1-B was revoked by my previous employer. But since my I-94 was valid until October 2018, I was told by multiple attorneys (Murthy, Fragomen and other attorneys) to stay back and apply. I also went to CBP (Customs and Border Protection) office in Washington DC airport (IAD), which issues I-94 card and also with USCIS office in Fairfax VA, which issues form I-797. They both confirmed the same that revoking H1-B doesn't have impact to your I-94 card. As per CBP, the following is the rule:

 (1) If your H1-B and I-94 card is expired then you cannot stay beyond the I-94 date. MUST LEAVE WITHIN A CONSIDERABLE AMOUNT OF TIME.

(2) If your H1-B is revoked before the expiration date of H1-B and I-94, it only cancels your H1-B (Work authorization) and doesn't impact your I-94 date. You are authorized to stay until the I-94 expiration date BUT CANNOT WORK. 

Please Note: CBP and USCIS are two different organizations and hence they have their own perspectives. USCIS would like to know what you were doing all this time (from the time your H1-B got denied till the time you applied for a new H1-B or your I-94 card gets expired). Hence, don't wait for too long. 

Edited April 16, 2018 by Chetan Mehta

[jimiparekh]

Chetan,

Your information regarding staying back in US after transfer denied is very much useful to lots of people in similar situation.

One question though, did you reapply H1 and got approval? If so did you get the new I-94?

[udaychoudhary]

I have left Company A on Jan 4th 2019 and Company B join on Receipt . Company A revoked the H1B on March 20th 2019. 
But Company B H1B transfer got denied on Jun 14th 2019. 
But Company C applied LCA on Jun 7th 2019 and LCA approved. And file H1B now as Full time. C company is client for Company B 

What will be the next steps 

Will I have 60 Days Grace period or not?

Note : Company A I 797 - I 94 Valid till Jan 2020 

[Tehmina]

Hello chetan.. my story is exactly like yours. Are you sure this information is correct?? If so.. you solved my problem like really ...please reply 

[Tehmina]

On 4/16/2018 at 10:43 AM, Chetan Mehta said:

Yes. I had similar issue. My H1-B transfer got denied and my previous H1-B was revoked by my previous employer. But since my I-94 was valid until October 2018, I was told by multiple attorneys (Murthy, Fragomen and other attorneys) to stay back and apply. I also went to CBP (Customs and Border Protection) office in Washington DC airport (IAD), which issues I-94 card and also with USCIS office in Fairfax VA, which issues form I-797. They both confirmed the same that revoking H1-B doesn't have impact to your I-94 card. As per CBP, the following is the rule:

 (1) If your H1-B and I-94 card is expired then you cannot stay beyond the I-94 date. MUST LEAVE WITHIN A CONSIDERABLE AMOUNT OF TIME.

(2) If your H1-B is revoked before the expiration date of H1-B and I-94, it only cancels your H1-B (Work authorization) and doesn't impact your I-94 date. You are authorized to stay until the I-94 expiration date BUT CANNOT WORK. 

Please Note: CBP and USCIS are two different organizations and hence they have their own perspectives. USCIS would like to know what you were doing all this time (from the time your H1-B got denied till the time you applied for a new H1-B or your I-94 card gets expired). Hence, don't wait for too long. 

Is this actually right??