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immisurvivor

H1B extension beyond 6 years has RFE- what are my options?

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I have approved I-140.

My current H1b visa is in the 6th year and expires on: Aug 24, 2019

I-94 Admit Until Date : Sep 03, 2019

Job: Full time employee in civil engineering discipline

My situation: My beyond 6 years H1b extension application (in premium processing) has received an RFE and we are in the process of submitting a response. Hoping to submit a response by 07/23/19 and giving 15 business days for USCIS I am hoping to  receive an answer from USCIS before Aug 15th 2019.

If my H1b extension were to be denied, I am trying to figure out all the available options to  maintain status and continue employment.

I have been told that either my current employer or a new employer can file a new petition for a different position before the expiry of my current H1B visa (usually referred to as transferring H1B visa).  In that case:

  1. Can I stay in the US and continue employment beyond the H1b expiry date or the I-94 admit date as long as the new H1b petition has been submitted but no receipt received yet? 

          OR – USCIS must have mailed the receipt before the H1B/I94 expiry dates in order to stay and maintain status and continue employment?

          OR - H1B petition must have to be approved before my H1B/I94 expiry dates in order to stay and maintain status and continue employment?

  1. If I cannot stay beyond I94 expiry without  receipt or approved H1B petition, then how long can I stay in the US after I94 expiry?

     

  2. Should I instead just leave the US as soon as the extension is denied just so that there is some time left on the current H1B visa?  Does that help me in any way?

     

  3. I also have the option of converting to H4 visa; In which case if the H4 visa application were to be submitted before I94 expires can I continue to stay while my application is pending or do I have to leave the US and return after H4 approval?

     

  4. Could I convert to F-1 visa? And should I leave and reenter the US to activate this visa?

     

  5. Any other options that I can consider ?

 

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Relieved to announce that after the initial scare, my extension petition was approved for 3 more years.  I did have to provide an extensive amount of documentation in response to my RFE.

I did not get the answers I was looking for here but got it from another source. Hope this information will help somebody else having similar questions:

1. Yes as along as the new petition has been received by USCIS before H1B expiry date

2. Can stay 240 days after I-94 expiry as long as new H1B extension petition is filed before the current one expires

3. Not necessary

4. Change of status to H4 should be filed before H1b expires and can stay in the US while it is pending.

5. Yes. No need to leave US as long as the F1 is filed before expiry of current H1B.

6. Varies by case.

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Hi,

Congratulations on getting the H1b approved. I am in the same boat as you were. I really hope you could provide an insight into mine.

My PERM got approved on Mar 17th2019. My employer received the originals end of March 2019.My H1B visa was expiring on May 1 2019. Meanwhile, my employer lost page 7 of 9 of the approved PERM on which I, as an employee were to sign. So on April22, 2019, my employer filed the i140 to USCIS without the page 7 and asked to procure the duplicate from DoL. During this time, we filed for H1B recapture until Aug 19th 2019 to utilize any unused period of my 6 year H1B. The recapture petition is still pending since the filed date i.e. April 30, 2019.

USCIS just received my duplicate 2 days ago and sent it to us. Today, on August 23, 2019, I signed the page and we are sending it out to USCIS via FedEx overnight and upgraded my i140 petition to Premium

I applied for a student visa before my recapture assumed date of Aug 19 2019.

Our next steps are

a) Wait for i140 approval and Apply for H1B 3 year extension and once approved, I can go back to work.

During this time, my employer said I do not have to be terminated and they put me on PTO from Aug 19th till my H1B gets approved.

Am I legally allowed to stay on payroll and PTO instead of being terminated? is it legally safe?

b) Official H1B approval I had was until May 1 2019 on which I had i94 until May 1 2019. My current recapture petition for until Aug 19th 2019 had been pending since and I do not have an official i94. Was I legally allowed to stay in America since May 1 2019?

Can you or anyone else please help me get answers to this case.

 

 

Edited by sd85333

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Hi,

Congratulations on getting the H1b approved. I am in the same boat as you were. I really hope you could provide an insight into mine.

My PERM got approved on Mar 17th2019. My employer received the originals end of March 2019.My H1B visa was expiring on May 1 2019. Meanwhile, my employer lost page 7 of 9 of the approved PERM on which I, as an employee were to sign. So on April22, 2019, my employer filed the i140 to USCIS without the page 7 and asked to procure the duplicate from DoL. During this time, we filed for H1B recapture until Aug 19th 2019 to utilize any unused period of my 6 year H1B. The recapture petition is still pending since the filed date i.e. April 30, 2019.

USCIS just received my duplicate 2 days ago and sent it to us. Today, on August 23, 2019, I signed the page and we are sending it out to USCIS via FedEx overnight and upgraded my i140 petition to Premium

I applied for a student visa before my recapture assumed date of Aug 19 2019.

Our next steps are

a) Wait for i140 approval and Apply for H1B 3 year extension and once approved, I can go back to work.

During this time, my employer said I do not have to be terminated and they put me on PTO from Aug 19th till my H1B gets approved.

Am I legally allowed to stay on payroll and PTO instead of being terminated? is it legally safe?

b) Official H1B approval I had was until May 1 2019 on which I had i94 until May 1 2019. My current recapture petition for until Aug 19th 2019 had been pending since and I do not have an official i94. Was I legally allowed to stay in America since May 1 2019?

Can you or anyone else please help me get answers to this case.

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