I 140 rejected, H1B extension based on recapture and wifes pregnant situation

[smmusic]

Hello all,

Here is my current situation. I have a few questions. Hope someone can help!

I140 rejected date: Sep 1, 2011

H1 Extension filed: Aug 30, 2011

RFE received: Sep 8, 2011

Deadline to send back RFE: Dec 1, 2011

Current H1B expiring date: Sep 25, 2011

Wife's due date: Dec 4, 2011

My I 140 was rejected just a few days after we filed for a H1 extension and CIS responded with an RFE.

My attorney is going to respond with the following:

- I have 36 days to recapture (for travelling outside the US during the current H1).

- I also have a strong letter from my wife's doctor telling that its a high risk to travel now.

The attorney wants us to delay the RFE response to a few days before Dec 1, while I was asking him to respond immediately.

The attorneys rational is that:

If they delay the response, it will buy more time until Dec 1 and they will apply for a CoS to B1, before Nov 10 which will work as a fallback if CIS denies the humanitarian extension.

My rational is that:

If we apply immediately, CIS will definitely give the recapture time of 36 days, extending my H1 definitely to Nov 10 with a 10 day grace until Nov 20, and if they approve beyond that on my wife's pregnant situation, that's great. But if they deny that, I will have the time to prepare and leave.

What would the best thing for my to, given my circumstances?

Any advise will be greatly appreciated.

[prajarajyam]

I think, your lawyer is correct.

Its the time to take Murthy help on this critical timing issue.

[Mpurush]

Originally posted by Mah:

Hello all,

Here is my current situation. I have a few questions. Hope someone can help!

I140 rejected date: Sep 1, 2011

H1 Extension filed: Aug 30, 2011

RFE received: Sep 8, 2011

Deadline to send back RFE: Dec 1, 2011

Current H1B expiring date: Sep 25, 2011

Wife's due date: Dec 4, 2011

My I 140 was rejected just a few days after we filed for a H1 extension and CIS responded with an RFE.

My attorney is going to respond with the following:

- I have 36 days to recapture (for travelling outside the US during the current H1).

- I also have a strong letter from my wife's doctor telling that its a high risk to travel now.

The attorney wants us to delay the RFE response to a few days before Dec 1, while I was asking him to respond immediately.

The attorneys rational is that:

If they delay the response, it will buy more time until Dec 1 and they will apply for a CoS to B1, before Nov 10 which will work as a fallback if CIS denies the humanitarian extension.

My rational is that:

If we apply immediately, CIS will definitely give the recapture time of 36 days, extending my H1 definitely to Nov 10 with a 10 day grace until Nov 20, and if they approve beyond that on my wife's pregnant situation, that's great. But if they deny that, I will have the time to prepare and leave.

What would the best thing for my to, given my circumstances?

Any advise will be greatly appreciated.

Another option you may want to consider is sending wife immediately to home country for delivery- that way you can sort out problems here without worrying about her pregnancy/lack of status during delivery etc.

[srinivasi]

I think with in 30days of 140 denail, you can go for MTR(motion to reopen) or AAO process(which takes longer time more 30months) which puts your labor alive until USCIS deny or approve 140 again. Meanwhile you are still eligible for H1 Extension based on the pending labor for 1 year of H1 extension. While you are in MTR in pending you can apply for New Labor which gives you new priority date.

[srinivasi]

Here is one of the Attorney says the same for a diff case as I have mentioned earlier.

Attorney_20

Advanced Member

Posted 19 September 2011 - 06:58 AM

You are still eligible to extend the H1B by one year if a timely filed Motion to Reopen/Reconsider (MTR) the denied I-140 is pending at the time the H1B extension is filed and your GC case has been pending 365 days or more.