Will my extension petition be considered abandoned?

[collegian]

Hello,

I recently traveled abroad from May 21st (departed country on 05/21/18) - June 4th. My employer filed my extension petition on May 21st and USCIS received the receipt on May 22nd. My current visa stamp is valid until July 1 and my I-94 until September 1. Upon my return at PoE, the immigration officer informed me that my extension petition will be considered abandoned since I left the country after filing the petition and that my employer will need to file a new petition. 

Currently, the case status tool shows that my extension petition was received. My questions are:

1) Will USCIS update my case status to be abandoned at some point in the future or will they continue to process it as a normal application unless my employer asks them to withdraw it? I am not sure how this works.

2) How long can I stay in the country currently? I am assuming until September 1, is this correct?

3) What happens if the extension petition status doesn't get updated until after September 1? Do I have to leave the country until the status is updated or can my employer file a subsequent petition without having to wait for a status update on the earlier petition?

Please advise.

 

Thanks.

[JoeF]

If you left the country while the extension was pending, it will be denied, because you were not in any status to extend.

[collegian]

15 hours ago, JoeF said:

If you left the country while the extension was pending, it will be denied, because you were not in any status to extend.

Should I get my case premium processed because the normal processing times are 5-6 months and I will be out of status by then?

My company's immigration contacts had told me that as long as I am present in the country at the time of filing and I have a valid visa stamp I can travel abroad and re-enter without any issues. Is that incorrect?

[JoeF]

You can come back as long as your current H1 visa is still valid.

But the extension will get denied if you go abroad, and the employer would have to file a new extension when you return.

 

[collegian]

On 6/9/2018 at 1:18 PM, JoeF said:

You can come back as long as your current H1 visa is still valid.

But the extension will get denied if you go abroad, and the employer would have to file a new extension when you return.

 

Should I opt for premium processing of my case since my I-94 is expiring soon?

[JoeF]

8 hours ago, collegian said:

Should I opt for premium processing of my case since my I-94 is expiring soon?

Hmm, for what? The petition your employer filed when you were traveling abroad is gone forever.

The employer has to file a new petition. Of course that can be filed with PP. Discuss that with your lawyer. And don't let them tell you BS about the old petition. That old petition is gone, period.

[JoeF]

To clarify a bit: The old H1 petition can be approved, but it won't be as extension of status. By definition you only have a status while in the US. When you traveled abroad, you no longer had a status, so it is impossible to extend a status that you didn't have anymore.

If the H1 gets approved, it would be with consular notification, so you would have to go abroad and get a new H1 visa. Or the employer can file a new H1 extension.

 

[collegian]

On 6/13/2018 at 9:13 AM, JoeF said:

To clarify a bit: The old H1 petition can be approved, but it won't be as extension of status. By definition you only have a status while in the US. When you traveled abroad, you no longer had a status, so it is impossible to extend a status that you didn't have anymore.

If the H1 gets approved, it would be with consular notification, so you would have to go abroad and get a new H1 visa. Or the employer can file a new H1 extension.

 

Thanks for the clarification. My employer has said that they will wait for the old extension petition to be adjudicated before they file a new one. The current processing time is 4 months on an average so I was wondering if premium processing would be better to get the adjudication. I have a need to travel abroad again in November.

[pontevecchio]

Your problem was that they considered the extension to have been filed when you were not in the country and that is not allowed. If you apply for an extension while in the country, you can travel and return on the existing visa and petition and the extension kicks in on approval. Hence as said your petition will be for consular processing if approved.

[collegian]

On 6/18/2018 at 5:11 AM, pontevecchio said:

Your problem was that they considered the extension to have been filed when you were not in the country and that is not allowed. If you apply for an extension while in the country, you can travel and return on the existing visa and petition and the extension kicks in on approval. Hence as said your petition will be for consular processing if approved.

What are the chances of approval in this case? I have been seeing conflicting posts with most saying that it gets denied majority of the times. 

[pontevecchio]

The chances of approval have NOTHING to do with the scenario described.

[collegian]

On 6/18/2018 at 5:11 AM, pontevecchio said:

Your problem was that they considered the extension to have been filed when you were not in the country and that is not allowed. If you apply for an extension while in the country, you can travel and return on the existing visa and petition and the extension kicks in on approval. Hence as said your petition will be for consular processing if approved.

Can my employer file a new petition while the current petition is pending adjudication?

[collegian]

 

Can my employer file a new petition while the current petition is pending adjudication?