4 options after H1b visa extension denial

Recently, my friend got into an unfortunate situation where his H1b extension petition was denied. It first went into rfe, and subsequently denied. It was denied because USCIS was not satisfied with the project details attached by his employer. His employer had placed him at a third party client site for the project. The initial RFE was was replied to. However, USCIS was not satisfied with the response and denied the extension.

Naturally, he had lots of questions like

  • What are the next options available to him in terms of his visa?
  • How long can he stay in the US?

He eventually found the answers for his questions and this post is a guide to people who get into this unfortunate situation.

Do I need to stop working?

You can work until your previous I-94 date or until you receive the hard notice of denial from USCIS (whichever is earlier). Most likely, the notice might ask you to leave as soon as possible.

What are the options available to revive my H1b visa?

There are few options depending on your circumstances

Appeal the decision

Your employer can opt to appeal the decision made by USCIS. But appealing doesn’t give you any legal status to stay and work. Also, appeals are not guaranteed to overturn the decisions. On top of if it may take several months to get a response for the appeal. So basically not very employee friendly.

Same Employer, refile a new petition for the same position

Your employer could file a new petition in premium processing attaching any additional evidences that would support the case. While doing so, they can save time by using the earlier LCA. They can also explain the previous petition denial and new evidences added to support the petition. In addition they could also request for your stay under extra ordinary circumstances. If USCIS accepts this it is the best out come. As USCIS would issue a new I797 with I94 and you wouldn’t have to leave the country. On the other hand, USCIS might approve the petition but ask you to re-enter the US with new stamping. Inconvenience, but still a better outcome. However, this whole thing is expensive as the employer has to pay for the new application, premium processing etc.

Same employer, different position

If your employer has a different position available, then they could file a new H1b extension petition for it. If it’s a similar position and location, they would be able to reuse the LCA and save some time. If it’s approved, USCIS may still ask to get a new visa stamping by going out of the country.

New employer, same position

If you happen to work on a third party client project, most likely you would have many other vendors working for the client. As soon as you know about your denial, you can start asking if any of those vendors would be interested to hire you for the same position. It’s always easier for a new employer to sponsor for a visa when you have a valid job on hand. This will involve new LCA and other processes and expenses.

New employer, different position

Basically, you would just start anew with a new employer and position. It may be challenging as you would most likely have to leave the US and apply for a visa transfer and extension after you get a job.

Change of status - become a dependent

If your spouse has a valid non-dependent visa, you can apply for a change of status to become a dependent. For example, if your spouse is on H1b, then you could apply for H4. So, that at least you have some breathing space. Though you cannot work, you will have time to figure out your situation.

What happens to my status? How long can I stay or Should I leave the country immediately?

Your are technically out of status as soon as you or your employer receives the hard copy of the denial notice. Most likely, the notice might ask you to leave too. Though you are out of status, you are going to need some time to wind up your activities and plan for leaving. But remember you would be accruing unlawful stay, so plan to leave in a reasonable time frame. In my friend’s case he immediately stopped working and made arrangements for travel and left the country in 2 weeks.

So, unfortunately in most of the options described above, you would have to stop working and leave the country :(

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