I485 recently applied and Extension of Stay was denied but H1B approved

[rajadurai]

Hi,

I am clueless on my Status

My Old H1B expired on October and my Company Had filed for an Extension Just before October.

I got my Latest H1B as Approved for the Status but Extension of stay is denied. Which probably means that I need to go to India for a visa. Meanwhile, My I485 was filed just 10 Days back as well.

What are my Options?

Can I continue to Stay here?

Can I go to India to Get a H1B Visa Stamping? If so, will that affect my AOS process?

Thanks,

Rajadurai

[Shurap1]

If you I-94 has expired and you do not have EAD then you cannot work. You do not have to go out of country as you are on Pending AOS status but require valid H1 or EAD to work.

You can also apply for Advance Parole (I-131) so even if you go to India you do not need to go for stamping and you can come back on Paroled status and with EAD can continue to work.

[must_get_gc]

when you say extension of stay denied, what does that mean?

Typically if you were maintaining status (I am assuming it was H1) prior to applying to your extension you will get a new I 94 attached to your new approved H1 petition. This new I 94 will have an expiry date of your new approved petition. Also, the I 94 record number will be same as the original I 94 record number when you entered US last. Was I 94 issued along with your new approved petition or not?

If yes, you are just fine.

If not, USCIS may have updated your I 94 record with new petition expiry date but may have forgotten to attach the I 94 with your approved petition. If your approved petition clearly mentioning that extension of stay is denied then your AOS may be denied as well becasue you are not on status while applying AOS. AOS means adjust your current status to Permanent. Consult an attorney immediately.

[rajadurai]

Thank you for your replies!. No, I did not get an I-94 and Yes I was mainintaining status, My company filed for an extension Before my current H1B/I-94 expired (expiry was 10/5). I just got this this H1 approval Notice as below last week

Notice Type: Approval Notice

Class: H1B

Valid from 10/5/2011 to 10/05/2014

“The above petition has been approved for the classification requested. It has been determined that the named worker(s) are not eligible for the requested extension of stay. You will receive a separate notice explaining the reasons for this determination. “…

This seems to imply that I will have to go out of country to get a new I-94 card? what happens to my AOS application which was filed when my H1B extension was pending?

[Belle]

Extension of stay denied means you are out of status now. Talk to your lawyer whether your I-485 is protecting you. If you applied for AOS while your H1 was pending, and your extension was denied, it is possible that you may have to re-file. You need to figure out whether your I-485 is considered to be properly filed.

[Univemp]

Hi Rajadurai,

I have been in the same situation as you. While moving from one university to another, my H1b which was valid till january 2013 became invalid because of a delay in the filing of H1b by the second University. Hence, though my h1b petitioned by the second University got approved, they denied extension of status. i became out of status. I was thinking of returning to my country for H1b stamping, when my I-140 EB1A got approved and I applied for AOS within 180 days (approximately 90 days out of status). The second University admitted that there was a clerical error in processing my H1B petition, and that it was no fault of mine. I submitted this letter along with my AOS and filed it through my Attorney with a 245(k) clause. However, I was unable to work till date and now my EAD and AP have been approved so I can be back on job again.

In your situation, you have already applied for AOS, if you leave the country now, you will essentially abandon your AOS. You need to stay on and wait till your I-131 (Advance parole) and I-765 (Employment authorization) are approved (assuming you have applied for them, along with I-485).

How long were you out of status?

[rajadurai]

My Old H1B expired October 5th. so It would be around 60 days till now.

p.s. I haven't heard back form my lawyers as of yet, I'll update once i get the information.

As for abanoning Visa, I don't think leaving US constitutes abandoning in all conditions there are exceptions. This is the information that I have found on USCIS.gov web site.

(2) Exceptions to the General Rule . Certain applicants for adjustment of status before USCIS are not considered to have abandoned their applications simply by having departed from the U.S., even if they did not obtain an advance parole prior to their departure. The following aliens fall within the exceptions to the general rule:

[/url](A) H and L Nonimmigrants with “Dual Intent.” Und er 8 CFR 214.2(h)(16)(i) and 8 CFR 214.2(l)(16) , H-1B, H-1C, L-1A, and L-1B nonimmigrants, and their dependent family members in H-4 or L-2 nonimmigrant classification, may be eligible to maintain and extend their nonimmigrant status while their applications for permanent residence under section 245 of the Act remain pending. The approval of a labor certification or preference visa petition or the filing of an adjustment of status application may not be the basis for a denial of an application for extension of stay by an H-1B, H-1C, or L-1 nonimmigrant or an application for change of status within the H-1B, H-1C, or L-1 classifications.

As long as an H-1B, H-1C, and L-1 nonimmigrant remains compliant with his or her nonimmigrant classification, including restrictions on periods of stay, changes in employers, and conditions of employment, the mere fact that he or she has filed an application for adjustment of status does not render him or her ineligible for an extension of nonimmigrant status. Similarly, the mere fact than an alien has filed an application for adjustment of status does not make him or her ineligible for nonimmigrant classif ication as an H-1B, H-1C, or L-1.

Under 8 CFR 245.2a(4)(ii)© , H-1/H-4 or L-1/L-2 nonimmigrant adjustment of status applicants who are not in exclusion, deportation, or removal proceedings are not required to seek advance parol e to travel abroad. They may be readmitted to the United States in the same status they maintained at the time of their departure, provided that they are able to demonstrate to the immigration officer at a port of entry that they:

• remain eligible for H-1/H-4 or L-1/L-2 classification,

• are in possession of a valid H-1/H-4 or L-1/L-2 nonimmigrant visa (if a visa is required), and

• are coming to resume employment with the same employer for whom they had been authorized to work as an H-1 or L-1 nonimmigrant (or, in the case of dependents, the spouse or parent through whom they received their H-4 or L-2 status is maintaining his or her H-1 or L-1 status).

If there has been a recent change of employer or extension of stay, the applicant, in order to comply with the third requirement noted above, must have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employer’s name, or a notice of action, Form I-797, indicating approval.

[Univemp]

Nonetheless, I would consider consulting an experienced attorney who will be able to advise you on this issue. An important aspect for you to consider is that if you continue to work without valid work authorization, that may have a negative impact on your I-485. Its your responsibility to ensure that you cease work immediately till you get your EAD. There have been cases where employers continued to employee, and then the USCIS finds this as unauthorized employment and the whole permanent residence application is jeopardized. i am sure it will work out for you, consult a good lawyer and they will advise you appropriately.

[rajadurai]

Had a talk with my Attorney, Univemps earlier message was correct, Leaving US would mean that AOS is abandoned. This is because the H1B petition was denied and if I left it will be only with .

Also, it looks like, since I-485 was recieved before my H1B was denied, that allows me to be in status. But I can't work just like univemps. I'm working with attornyes on the next steps. Thank you guys for the help.

[Belle]

Do you have an AP? If yes, your petition will not be considered abandoned.

[Univemp]

Hi Rajadurai,

I got my EAD/AP combo card in 63 days and now my I-485 approval also came through in 101 days. Stay and stick it out would be my advise...wait till you get the EAD/AP then you will be fine. Usually this is given in 90 days...

[forum.user]

Don't take your situation lightly. I would highly recommend to contact a well known law firm in order to protect your future in US and offcourse you can contact Murthy firm.

[frq49]

H1b Expired on Setp 2017

H1B Extension applied on June 2015 

RFE Rec = Dec 7th, 2017 

RFE repl = Jan 7th, 2018 

USCIS online Status = Denied, March 6th, 2018 (my company havent received the letter yet)

Priority Date = Dec 6th, 2016 

I-140 Filed = April 10th, 2017 

AOS = Haven't filed yet, but my visa number is current as I am from ROW. 

As per above situation 

1. Can my company filed my AOS immediately ? if they do will I be able to stay in U.S or still need to leave the country? 

I am planning to leave the country in three days, as I don't want to accumulate any out of status or overstayed which can cause problem for me during consularing processing in my green card, in case I am not eligible to file AOS immediately. 

Any advsie will be welcome. Thanks.