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

#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.