H1B Visa Refusal - Urgent Help

[mantmo]

Dear Friends,

I received 221g in June and finally refusal letter on October 28th.

The letter seems to be standard one with following lines.

Based on the documents submitted to us and the information elicited in your visa interview with a consular officer, we were unable to issue a H-1B temporary work visa, because your petitioner does not appear to be either able or willing to provide qualifying employment in the United States in accordance with appropriate laws and regulations.

In accordance with United States law and Department...

....

For your information your visa was refused today under Section 221(g).....

....

I need urgent help on below questions:-

1. Can I still continue working and getting paid from my employer remotely as I have been doing all

these days?

2. Does this letter mean my visa is Rejected? What is the difference between Visa Regection/Refusal?

I heard if visa is rejected you need to wait for one year before filing a new petition. Which category

do I fall into? Can I apply for a new petition right away? If yes, do I need still need to WITHDRAW

my application or its not necessary now?

3. If I file a new petition do I come under the quota or it will be regular h1b transfer to new

employer?

4. Can I file a new petition from same employer? How safe is it? Or is it safer I file a new petition

from a new employer (Client same)

5. If I file a new petition can I continue working for my previous employer until I get Receipt number

for the new petition?

Yours answers will be really helpful to me take decision in this situation.

Thanks

[bkrishna2001]

Where did you went for your visa stamping?

[tar53]

Which consulate you attended the interview?

[gagarli]

where did u go for interview?

did they contact ur employer?

[mf1]

1. Yes, you can work. If you're not in US, why does US care how you work.

2. Whatever. You can go for new petition anytime you wish.

3. You are not cap-counted. Even if it does, there is quota available, so why do you care?

4. Yes. any employer, any client.

5. You mean remotely? See 1.

[hdis2011]

Same thing happened to me.

1. If you are sure you will come back to US, then continue working without any paychecks. Paychecks have to stop the date when visa is refused, else you will be in trouble if you are back to US and they come to know that you received paychecks without any status, as will your employer. You can have a deal with your employer and if he is ok, mine was ok. This method is make sure you dont lose your job/client. Once you come back to US start your paychecks with the backlog salary.

If you are NOT sure you will come back to US, just resign.

2. Visa refusal is done by the consulate after they issue 221g, there after the petition is forwarded to USCIS (in kentucky i guess) for further processing of REJECTION.

I came back to US on H4 (wife on h1) after mine was refused. The process of REJECTION usually takes 6 months. I applied for renewal for the same petition on which visa was REFUSED, and the renewal was approved for the next 3 years.. i know its strange.. its all crazy in US ;)) So now I am on H1 again.. I did the renewal in premium processing.

Yes, you can apply for a new petition and need not wait for an year :)

3. If you file a new H1 you will fall in the quota. But if you come back to US on say B1 or L1 visa, then apply for renewal, then you will not be under the quota if applying from same previous employer.

4. File from the same employer if you want to save your job, then once renewal is approved you can change employer if you want.

5. No you cannot "work" for your employer until you get "visa". Receipt # is valid to work only if you are in US, not outside US. Again, you can work but will be troublesome if they find out and your employer has generated paychecks while you are on receipt# and that too outside US.

[sree15]

Hi ,My husband has same problem,he went for chennai for h1b stamping (renewal) on june 2nd after 3 months hold period (in end of aug)they sent a letter which states the same thing which you mentioned

Based on the documents submitted to us and the information elicited in your visa interview with a consular officer, we were unable to issue a H-1B temporary work visa, because your petitioner does not appear to be either able or willing to provide qualifying employment in the United States in accordance with appropriate laws and regulations.

In accordance with United States law and Department...

....

For your information your visa was refused today under Section 221(g).....

....

So after one month he went for H4 stamping then it approved ,now he is US ,applying for new H1

[JoeF]

Sure you can work remotely from outside the US. US laws apply only within the US. But you may have to pay taxes in your home country.

[mantmo]

Thanks a lot for the responses guys!

Went for stamping to Chennai consulate and they did not contact my employer or client

during the process.

hdis2011:

Thanks for the detailed information. I have read many people in same situation continue working and get paid too! In fact when I came to India I went for stamping for my previous

employer 'A' and had to withdraw the application right away as the VO suggested it will take

couple of months. I filed new petition from employer 'B' and I had been working for them from

India for past 6 months and getting paid in US. Now I plan to file through the same employer 'B' and continue working for them until I get petition approved and visa stamped. Is that fine?

[mantmo]

Thanks mf1, you are actually right, dunno why we guys worry so much about the stamp if we have the job!!

[hdis2011]

Thanks a lot for the responses guys!

Went for stamping to Chennai consulate and they did not contact my employer or client

during the process.

hdis2011:

Thanks for the detailed information. I have read many people in same situation continue working and get paid too! In fact when I came to India I went for stamping for my previous

employer 'A' and had to withdraw the application right away as the VO suggested it will take

couple of months. I filed new petition from employer 'B' and I had been working for them from

India for past 6 months and getting paid in US. Now I plan to file through the same employer 'B' and continue working for them until I get petition approved and visa stamped. Is that fine?

Well, yes you can definitely work as I said earlier but the question is whether to get paid or not. As per my attorney (when I was stuck in India) he said that:

- I maintained H1 status while in US

- Went for stamping in India, got 221g

- Still can continue work, get paid until a decision comes by from Consulate

Once my visa was refused, my paychecks where stopped from that date. I continued my work thereafter without pay. Yes, as you said, many people get paid too.. but the point here is once your visa is refused the application goes back to USCIS and you have no STATUS. May be its fine for now, but just imagine what will happen if your employer is audited (yes this is very common these days) and they find out that your employer ran paychecks for an employee who is not in status ? He will be in trouble and you will be big trouble if at point you are present in US. Or think you are applying for GC in future.. at final stages of GC they will check each and every minor detail of yours. Well I am (already have) applied for GC so I didn't want the hassle in future so I stopped my paychecks.

So, yes, you can work while your new petition is approved and you get your visa.. but my suggestion is don't get paid until you are back to US to avoid trouble. Rest is your call.

[mantmo]

Thanks for the valuable advice HDIS, you saved me from future trouble..

[mantmo]

@HDIS:

If I apply for a new petition now, can I continue getting paychecks AFTER the petition is approved and I get i797 from new or same employer?

[man_1975]

Well, yes you can definitely work as I said earlier but the question is whether to get paid or not. As per my attorney (when I was stuck in India) he said that:

- I maintained H1 status while in US

- Went for stamping in India, got 221g

- Still can continue work, get paid until a decision comes by from Consulate

Once my visa was refused, my paychecks where stopped from that date. I continued my work thereafter without pay. Yes, as you said, many people get paid too.. but the point here is once your visa is refused the application goes back to USCIS and you have no STATUS. May be its fine for now, but just imagine what will happen if your employer is audited (yes this is very common these days) and they find out that your employer ran paychecks for an employee who is not in status ? He will be in trouble and you will be big trouble if at point you are present in US. Or think you are applying for GC in future.. at final stages of GC they will check each and every minor detail of yours. Well I am (already have) applied for GC so I didn't want the hassle in future so I stopped my paychecks.

So, yes, you can work while your new petition is approved and you get your visa.. but my suggestion is don't get paid until you are back to US to avoid trouble. Rest is your call.

I am in same boat. My visa was refuced under 221G. I contacted my attorney and as per my attorny

1. You can work and you can get paystub until USCIS sent final H1B revocation notice which took about 3 months to 2 year.

I am still getting my pay checks.

[mantmo]

Thanks Man1975.

I employer is going to be reapplying for a new petition. Can I continue working as I have been until I get new petition and after I get one? Do I need to do any formalities?

[hdis2011]

@HDIS:

If I apply for a new petition now, can I continue getting paychecks AFTER the petition is approved and I get i797 from new or same employer?

If you new petition is approved and you are out of US, then your employer cannot generate paychecks for you because you are still out of status. You will be in status once you have your i94 for which you need to have h1 visa.

Best suggestion for you from me is -

- file new petition

- continue your work

- have a deal with your employer for backlog salary (or) run paycheck on some other employee who is in US and pay you cash in your account

- once petition approved, go to visa stamping

- my good wishes that your visa will be approved

- come back to US, start getting your paychecks

[mgty]

Hi, I am also in the exact same situation. But I had just finished my last project before coming back, and was about to interview for the next one...had to postpone it because of my urgent travel plans. So basically now I do not even have a project to work on from here, for the time being.

Fortunately my best friend is getting married next month. I am considering applying for a B2 visa, to attend the wedding. Of course my friend will be sending the card, sponsor letter, our pictures, etc. I have also started working here for a new employer and will get a letter from them stating that I work for them, and will be on leave for 2 weeks to attend the wedding. What do you think are my chances for getting the B2? Any advice/suggestions/ideas???

Please let me know. Thanks so much!!

[JoeF]

Well, yes you can definitely work as I said earlier but the question is whether to get paid or not. As per my attorney (when I was stuck in India) he said that:

- I maintained H1 status while in US

- Went for stamping in India, got 221g

- Still can continue work, get paid until a decision comes by from Consulate

Find a better lawyer.

If you are outside the US, you can work remotely and get get regardless of the H1 visa.

The decision from the consulate has absolutely zero to do with getting paid. This is a contractual issue between you and the employer, and has nothing to do with any visa.

There are of course tax implications. You probably have to pay taxes in your home country.

[Prasad]

I am also in the same boat. Got 221g in May and got the visa denial letter just last week. I am in the process of getting H1 for an EC Model. I have been remotely working and getting paid, paystubs etc.

My attorney said I can continue to work since the petition is not revoked. But since my paystubs are being generated with US address, my taxes are cut for state and federal. I plan to continue to work for my old employer for one month and after new H1 is approved, will resign from the old employer by giving notice to him and will no longer get paystubs from him.

@JOeF, can u please elaborate when u say I might have to pay taxes in home country, do u mean we need to change the way payroll runs.

I have one more importatnt question regarding my second visa interview and appreciate the responses of Experts here.

I saw posts in forum where if ur previous visa is rejected if u attend visa interview with new H1 with different employer and if USCIS didn't send any notices to ur employer or if case is not revoked, VOs are asking to sign something against old employer. I want to know to avoid such things what needs to be done. I don't think my old employer will revoke the petition. Can I send a letter to Consulate/USCIS before attending the visa interview to withdraw my current petition.

[Prasad]

@man_1975, mantmo, Can u please share ur contact email info. U can get mine from my profile. I would really appreciate I can get to talk to u as we are all in same boat and want to understand the next steps clearly.

[forumman]

@mantmo: Can you tell what is the date on your refusal letter ?

[mantmo]

Thanks for the responses guys, it really helps!! So I believe I can continue getting paid. As it is Ill be paying US taxes for nothing.

@forumman

Date on the refusal letter was 28th September. I received the letter on 30th October. I had re-submitted the docs on 5th July after getting them back with 2nd attempt.

Need to know one more thing from all you experienced people.

I am am re-applying from the same employer for same EVC model. How many percent chances of approval this time? I read somewhere it helps as you

are kind of challenging them that you got a genuine project.

Another employer is ready to apply for me with same vendor-client. What is advisable?

I am holding up the decision as of now. Your views will help..

Thanks,

Manish

[mantmo]

H1B Employee Permitted to Work Remotely from Outside U.S.

While it is not typical for an employee to work for the H1B sponsor while abroad, some employees are able to continue performing their job duties remotely. They are often afraid that this is somehow a violation, since they are having problems with the H1B case. The immigration law restrictions do not control work performed while an employee is outside the U.S. Therefore, there is no reason to fear the discovery of earnings generated while outside of the United States.

Source: http://www.murthy.com/news/n_h1afre.html

[Prasad]

H1B Employee Permitted to Work Remotely from Outside U.S.

While it is not typical for an employee to work for the H1B sponsor while abroad, some employees are able to continue performing their job duties remotely. They are often afraid that this is somehow a violation, since they are having problems with the H1B case. The immigration law restrictions do not control work performed while an employee is outside the U.S. Therefore, there is no reason to fear the discovery of earnings generated while outside of the United States.

Source: http://www.murthy.co...s/n_h1afre.html

Thanks for the link, very helpful. Any updates on ur case or new petition filing?

[mantmo]

LCA has been applied yesterday. Should take 7 days, after that premium processing filing.

Will keep updated.