Overstay on H1B Transfer Consular Processing

[srimatam]

Friend of mine was working with employer A on h1 b with approved petition and stamped visa for duration (08/18/18 - 02/03/21) and moved to employer b (joining date 7/19/19) with an approved petition (06/24/2019-02/25/22) and no stamping.
His previous employer (employer a) withdrew his h1 on 1/13/2020 and today he got to know from employer b’s attorney that his h1b got approved as consular processing and not change of status. 
When checked with employer attorney, they said they reached out to USCIS agent and they submitted for forgiveness petition.

His wife is working on H4 ead for a different employer.

1. Is he and his wife both considered out of status ?

If yes:
1. Is there a review process of sorts with which they both can continue to stay in the US and possibly continue to work with the respective employers?
2. how much  time do they have to leave the US?
3. Generally, what are the chances of getting the visa if they were to go back to India and go for stamping on the consular processing petition ?

If no:
4.What correction does he need to do now ?
5.Do they need to leave US?
6.If so, how much time do they have to leave to India ?

[User099]

18 hours ago, srimatam said:

1. Is he and his wife both considered out of status ?

I would suggest your friend to talk to an attorney as you are dealing with begin out of status. As they have already filed for a NPT, I feel you can wait till its processed. 

If you have to leave, you will have to do it ASAP. 

But why did your petition get approved in consular processing and not extension of stay? 

[srimatam]

His Employer attorney told him, His employer has filed for extension of stay but USCIS has given Consular Notification. When his attorney called USCIS Agent, he also confirmed the same. But USCIS Agent told my attorney, he requested documents from storage to reverify and respond, which will take around 10 working days. I am not sure if it is called NPT or its a different? His Transfer was in premium. Is this a normal process to call USCIS and raise these kind of request? If So can USCIS change the I797?

 

Also one more question on I9, as he filled the I9, is it not the employers responsibility to verify if I9 is correct or not? Since the employee is not aware, it could have caught from employer side verification. Will there been a issue to employer in this case?

[User099]

It will be an issue for employer also, but it will be a bigger issue for your friend as he have overstayed the visa. USCIS can correct the mistake if its on their side. 

[srimatam]

My employer filed for extension of stay, is it common to give I797B instead of I797A?

Edited February 6, 2020 by srimatam

[User099]

I797B means they will have to go for visa stamping and come back. They will have to leave the country asap.

[srimatam]

Doesnt matter USCIS has corrected and provided I797A with corrected I94. Thank you very much for your help.