H1B Approved But COS Denied, Do I need to Stamp Before Oct1


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My Employer Applied for H1B for me on April 11 and My H1B got Approved on August 07, 2014. However, My Change of Status got denied and the reason USCIS mentioned was due to not being in status. This is not True as I am in Status. 

 

Background on my documents: 

 

I applied for H1B with the following Docs: 

  • I-20 with OPT dates expires on June 2, 2014 
  • OPT EAD Card expires on June 2, 2014 
  • Valid F-1 Visa till March 15, 2015  
  • Valid I-94 
  • Valid Passport

The Application was pending process after submission. 

 

Beginning of June, I requested my school to provide extended I-20 as per Cap Gap period and they Provided me with the extended OPT and I-20 till September 30, 2014

 

I have provided my employer with the new I-20 but they did not update USCIS with it. Thinking this may not be needed.

 

On July 11, I left the country for visit to my home country and got back on August 12, 2014.

 

Remember my H1B got approved 5 days before i come back to US. I was Admitted to US based on my I-20 and F-1 visa.

 

when I received the i-797, it mentioned that my H1b approved but the change of status was denied due to being out of status when I applied for the petition.

 

My employer is saying that I need to leave the US for stamping before Oct 1, 2014 as I travelled while the h1b process pending and that why USCIS said I was out of status.

 

Some other said they think you are out of status because they have the old i-20 expiring on June 2, 2014 and they never got the new extended one. but my employer said it is not needed to provide the new one as they can check in the system.  

 

I spoke with my employer legal department and they are not sure so they ask me to get third opinion.

 

What should I do, Do i need to leave the US for stamping and come back ?

 

Can I stay in the US ? will there be a problem ?

 

Can my employer apply for amendment ? what is the risk ?

 

Please advise  

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Your travel is the reason for not getting COS approved. At the time of petition filing you were in valid status. If USCIS had an issue with your status in US there would have been a RFE. But, it wasn't so. You need to exit US and enter with a valid H1B visa and I797 not more than 10 days before your H1B start date.

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Thanks Jairichi for your reply. So for now can I go to Ottawa, Canada or has to be from my home country ? 

 

 

Does stamping need to be before Oct 1, 2014 ? i am in the US now 

If you would like to start working from Oct 1st on H1B you need to go for H1B visa stamping. You can go now to any US consulate that entertains your visa application. With a H1B visa you can enter not more than 10 days before H1B start date of Oct 1st.

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