How much time do we have to leave US after H1B extension denial?

USA
#1

Hi Anil,

After I-94 and H1B visa expiry which in my husband’s case was on May 2, 2019, he had applied for H1B extension for which we didn’t hear anything till 1st week of November.
My husband then applied in premium processing and within a week he got a denial notice, no reason given.

On Friday 15 November, he got an automated email stating his visa has been denied and today he received an official email from his employer that his visa extension has been denied and he needs to leave.

Can you please let us know by when at the max we need to leave? Also if you say 7-12 days, does that mean 7-12 business days ? We are clueless, please help!

And is there any way we can stay back ? He has got few people who are already looking into everything to hire him back and he also got offers from different clients who run consulting firms.

Can you please advise how much time (maximum date we have to depart ) and what all options we have.

Many thanks as always !!!

#2

Sorry to hear about your H1B denial.

Unfortunately, you have zero days to leave US after the denial, if your i94 has already expired.

You can fileH1B transfer but cannot stay in US as i94 has already expired and H1B extension has been denied.
You should wait for result outside US and come back once the H1B petition is approved.

The normal time that is normally considered okay to leave US is about 10-15 calendar days (not business days).

But, please note that you will still need to mention this time as overstay time in all your future US visa applications (on DS160) along with the legitimate reason.

#3

Hi Anil,

Many thanks for getting back to me.
We are told the flights will be booked in a weeks time so most likely we will be heading out of USA next Thursday.

“ No issue if you mention the Truth in DS 160
It is okay to mention this Unlawful presence time as it is a genuine time spent wrapping up your stuff to leave USA. It will not affect your application”.

We are facing similar situation as per the above information, knowing our travel will be delayed by 12-13 calendar days after the denial notice was received. You suggest it will be okay as long as we can give them a valid justification as to why we were delayed ? This wont hamper our chances to return back to USA soon as possible in good faith ASAP … this is the only bit we worried about , we don’t wish to have any negative comments on us with uscis.
Also, I’m unclear about the 180 days unlawful presence bit, does this start when both the H1B visa as well as I-94 expired or does it start after the denial notice was issued.
Also, im a UK citizen on a dependent H4 visa, is there anyway I can change it to any other Legal visa and continue to stay in USA.
Please advise.

#4

The unlawful presence starts immediately after the application is denied and not when you receive the notice.
So, you have probably already spent 10+ days on unlawful presence.

Since your i94 has already expired, it will be counted as unlawful presence time but it is fine as you have a genuine reason. Don’t worry. It happens with many people and you are not alone.

You can apply for any other US visa but will still have to go out of US and come back once it is approved. At this time, i am not aware of any option to stay other than filing an h1B denial appeal.

#5

Hi Anil,

When you say “The unlawful presence starts immediately after the application is denied and not when you receive the notice.
So, you have probably already spent 10+ days on unlawful presence”
Is there any way to know from which date the unlawful presence started? My husband visa and I-94 expired in May when he applied for extension in March , he got an RFE and we were waiting on the outcome whilst submitting the necessary additional paperwork.

We only came to know on USCIS website on November 15 that his visa extension has been denied and this was than officially confirmed to him by his employers yesterday and thus counting from yesterday we are taking a week to pack and leave.

As per your quote you said we already spent over 10 days, i am confused as to from when to calculate unlawful presence in our case . Can you let me know the date and how much we exceeded please.

Thanks

#6

The date of denial mentioned on the online USCIS status should be the start date of unlawful presence.

I have just given the 10 days as an example. You have to count the days yourself based on the status mentioned by USCIS.

#7

Hello Anil,

You are always our savior when in doubt.
My husband was on H1B visa with 1-140 approved in USA for last 10 years, his I-94 was expired and H1B extension was denied and we had to move back in November last year to India . His employer has once again filed a new H1B for him in India and he has his new visa approved recently but till December 2020. We were in the process of booking a slot for the interview with the embassy but the virus had halted our plans.
Any idea when the embassy is likely to conduct interviews and stamping would be done. With this virus uncertainty, is there any guidelines or travel restrictions for H1B/H4 visa holders, when it comes to entering and working in USA currently. Please let me know.
Once again forever grateful.

#8

There is no information about when the US embassy will resume its interview appointments.

I will share it here once they have started. Note that it might be flooded as lot of people are waiting eagerly to get an appointment.

#9

Many thanks for your reply Anil.

Im just confused since when I read your article, it says “ Earliest US Visa Appointment Date Available
The earliest available US visa appointment on usatraveldocs India website shows as Oct 1, 2020.”

Does this mean we can’t schedule and enter USA until October 2020? The issue here is the H1B visa is valid only until December 2020 and I’m expecting as well hence would like to travel at the earliest.
Any clue if this is possible ?
Thank you.

#10

That was the date that showed as available when the article was last updated.

That’s just a date that’s showing online. When you actually try to book, system does not show any date at this time.

#11

Hello Anil,

Me and my husband returned from USA to India in November 2019, since our H1B visa extension was denied.

My husbands employer applied for a new H1B visa at the start of this year and it got approved only till December 2020. Now, due to covid 19 situation, USCIS had been closed and we couldn’t schedule a visa appointment date.

Do you have any idea when USCIS would open and we could schedule an appointment. Also, if the visa is valid till December 2020, by when is the last date we are allowed to enter USA and file for extension.
Kindly let us know.
Thank you.

Appreciate all your help always.

#12

You need to watch for US embassy opening and not USCIS.

USCIS only approves your H1B petition and not H1B visa.

There is no information from US embassy in India about the opening dates at this time.

I will share as and when they open.

You can apply extension again from India too if you are not able to enter US by Dec 2020.

#13

Thank you for this.

I’m just confused as to when is the latest we can enter USA (Or by what date are we allowed to enter USA and file for extension) before the expiry of H1B visa in December 2020.

#14

There is no such date. You can enter US as long as you have a valid visa stamp and an approved H1B i797.

#15

Hi Anil,

Further to our conversation , I wanted to check with you our situation…
We currently have booked an Appointment for visa stamping in Delhi for October , we are pending visa interview, my husband has got a new H1B visa (cap exempt) and both i797 and i140 approved. Will the new Trump travel ban affect us in any way ?

Kindly advise

Thank you.

#16

Use the app given here to find if the H1B travel ban affects you.

#17

Hi Anil,

After our exit from USA to India in November 2019 due to H1B visa extension denial. My husbands employer had applied for a new H1B visa in India, at the start of this year and it had got approved in March but only till December 2020, the visa appointment had been pending and due to the covid situation and USCIS being closed, we were unable to schedule our visa appointment. Later in June, the Travel ban had been announced and we were left disappointed. Now, according to the new update on Wednesday, where it’s been stated that there has been some relaxations around H1B visa, we are a bit unsure if this applies to our case/ situation and would like to know that if my hubby attends the visa appointment , does he stand a chance of being approved in the current situation and will be able to enter USA, knowing his H1B is only valid till December 2020 ? or he should rather not attend the visa interview as the relaxations aren’t necessary for him and the chances of denial are there. He will be going back on the same visa and working for the same employer though.

Once he reaches USA, his employer will be filing his renewal after successful H1B approval.

Appreciate your advise always.

Thank You so much.

#18

Hello Everyone,
I am in same boat. My h1b extension petition was rejected on july 13 2020 as per denial notice and i traveled back on july 20 2020 with 7 days over stay technically.
Now my new h1b petition is approved and while filling ds160 should i say YEs/No for overstay question.
Please share your experience with this question and outcome in interview.

#19

Yes, its always better to declare it with a valid reason of overstay.