Hi Anil,
This was the comment which I mentioned about in my last comment on this post.
Let me re-visit his case and see.
I am also checking on your case scenario and will let you know.
okay. will be waiting for your reply anil
Hi @Arshad_S,
@vcdusdays 's case
My answer to @vcdusdays about ‘working for 240 days after i94 expiry’ was based on the assumption that his both applications were filed before his i94 expiry in September 2017.
At that time, i had assumed that his i94 expired in Sep 2017, which he later clarified that it was not the case.
In his case too, if his first MO application would have been denied (keeping in mind that his NY application was filed AFTER his i94 expired), his NY application would have been in trouble too.
Your case
In your case too, the i94 had already expired before your second application was filed.
Now, when your first application (filed before i94 expiry) is denied, the BRIDGE between your first and second application is BROKEN with respect to your ‘Authorized stay’ within US.
Understand it this way:
-
Assume that your first application was APPROVED. In this case, USCIS would have sent you a new i94 attached with approval.
This new i94 would have given you the authority to stay within US and covered your second application’s December time frame. -
Now, that USCIS has DENIED it, you do not have a VALID i94.
The period of stay between your i94 expiry and your second application’s date in December is counted as ‘OUT-OF-STATUS’.
Legally, one can apply for H1B extensions even after i94 expiry (which, now is your second application’s case), but the USCIS does NOT recommend it.
They have documented that they will MOST probably NOT extend the visa, if applied after i94 expiry.
Snapshot from page 3 of official USCIS guide.
Source: Read this USCIS document on page 3, top left corner. -
In these kind of cases, the USCIS generally either issues RFE (or rejects) the second application too.
But, we cannot really say what they will do.
They may also APPROVE your second application, but it would be done with ‘Consular processing’. This is because your i94 was NOT valid at the time of making second application.Meaning, you will have to go out of country and get a new visa stamped and re-enter USA.
-
Your company’s attorney will have the option of challenging the USCIS decision of denial based on the reason they receive from USCIS.
This process will take time and as per my opinion, you probably will have to leave the country immediately at this time to avoid adding un-lawful status.
Your attorney will have to prove that the second application was filed in ‘unforseen circumstances’ and USCIS may reverse their decision based on your attorney’s reasoning.
The USCIS denial letter will tell if they will count your time as ‘out of status’ or not.
An example case (not exactly same but similar):
Awesome. Thanks for all the information and update Anil!!
Gathered lot of knowledge on this now 
You are welcome.
Do share what actions you take and what your attorney suggests.
Your information will help other community members too.
Awesome Anil…
The way you Understand the case and put things in right perspective…Great.!
All the best Arshad…!
1 Like
Hi @Arshad_S
Did you get any update on your case from USCIS?
What is your employer’s attorney saying with respect to next steps?
Hi Anil,
Recap:
Entered US: Mar 8th 2017
Visa and I94 expiry: Oct 23 2017
Filed Extension: June 2017
Got RFE: Sep Nov 2017
Responded to RFE: Dec 20th 2017
Filed Amendment too with current client in Dec 2017
Extension Denial Date: Feb 23 2018
I got to know that we got physical copy H1b extension denial on Feb 23 itself.
I saw it online on Feb 27th.
My client doesn’t leave me and has provided client letter which my employer can use to file new H1 with same client.
My employer filed new LCA on Mar 2nd and got it approved on Mar 9th.
My employer trying to file this new H1 with Nunc Pro Tunc in premium processing tomorrow (03/15)
With my investigation, I understood that I will be out of status after 30 days from the date we receive physical copy of denial notice. Am I right?
If Yes, then I have time till Mar 25th.
What I’m thinking is, if I get USCIS decision on my new H1 with same employer and same client before March 25th then it can come in 3 ways.
- Approved with I94
- Approved without I94 (go for consular processing)
- Denied
If I get option 1, before March 25th , I can continue in US
If I get option 2, then I need to leave and get it stamped and come back
If I get option 3, then leave US
IF I DONT GET ANY USCIS DECISION UPDATE BEFORE MAR 25TH THEN LEAVE US
Am I right in my assumption?
Am I playing with out of status date and taking risk ?
PS: I’m still in US
Arshad
Hi @Arshad_S
H1B out of status and time to leave US
As per my information, you have zero (0) days to leave US after your extension is denied.
All other numbers are just speculation and there is no documented number unless USCIS mentioned any specific timeline in the denial letter.
Usually, a “reasonable” time not to exceed 10 - 15 days is recommended. This is because we are human and need time to wrap up our stuff and leave US.
This can be explained in future visa application and if questioned at US consulate interviews too. They also understand and forgive this time.
But, more than that is DIFFICULT to explain.
Technically, you have been ‘out of status’ since October 23 (i94 expiry date) and accruing unlawful presence since Feb 23 (Extension denial date) now.
More information on what can happen if you are out of status.
H1B Nunc Pro Tunc (NPT)
Your ‘Out of status’ is now dependent on your H1B NPT application’s result.
-
Approved with I94
If USCIS approves it based on the extraordinary circumstances that your attorney will project, then they will wipe the time from Oct 23 to today and you will have a new i94 from back date which will complete the bridge.
You will a reason to party if this goes through. -
Approved without I94 (go for consular processing)
If USCIS approves it with consular processing, your time spent in US after Feb 23 (denial date) will always be counted as ‘Unlawful presence’.Every time you file for a Visa, when asked “have you ever been present in the US illegally”, you will have to answer “Yes” and explain the reason.
-
Denied
You come back to square one and should leave US immediately.
If you stay, you will be adding time to your ‘Unlawful presence’.
I hope and wish that your H1B Nunc Pro Tunc (NPT) gets approved as that’s the best option you have.
Let me know if you need more information. Happy to help.
Thanks Anil!!
If H1b under Nunc Pro Tunc is filed and after that person leaves US and waits for the decision from outside US…
then
- Will his H1 Nunc pro tunc petition becomes invalid ?
- If answer to above question is NO and If it turns out to be approved with I94 then does that person needs to go through stamping process or drop box ?
Arshad
Hi @Arshad_S
-
The whole purpose of H1B NTP application is to fix your i94 gap while you are within USA.
-
If you go out of US, then if this H1B application is approved, you will have to get a new H1B visa stamp at US embassy to re-enter US.
- The whole purpose of H1B NTP application is to fix your i94 gap while you are within USA.
Yes Anil. You are right. I got it. But I also dont want to take risk staying for long time for its decision and if it comes out as denied then i would have accrued many unlawful presence days(I’m already in 3rd week). This is what making me to think to leave as soon as petition is filed and wait for decision from outside of US._ Am I thinking it right?_
- If you go out of US, then if this H1B application is approved, you will have to get a new H1B visa stamp at US embassy to re-enter US.
Okay
Hi @Arshad_S
I did suggest you to leave US earlier as well keeping in mind the ‘unlawful presence’.
You could have filed the H1B application from outside US as well.
Now that you have filed the application, I would say that talk to your attorney clearly to find out what you should really do in this scenario. Then, take a final decision as your future depends on it.
I am sure your attorney would have studied your case in detail along with your employer’s credentials and reputation before suggesting for H1B NTP option.
There are real life cases (you can search online) where people have overstayed after their i94 expiry for up-to 3 years and still got their H1B Nunc Pro Tunc application approved.
It all depends on how your attorney handles the case and your employer’s reputation.
I hope your case is one of them that gets approved .
Hi @Arshad_S
Just wanted to check if you got any result on your premium application?
And what decision did you take?
This will help others in the same boat.
Hi @Anil_Gupta,
I have a similar case my employer filed for H1B extension in May-2017 and I got an RFE on this.
My employer replied the RFE and it was received by USCIS by Oct-26-2017. Meanwhile my employer filed another h1b extension application on Jan-2018 as there was no action done on previous case.
As my 240 days limit was reaching by Apr-23 my second application was updated as premium. I got RFE on both case again and my employer replied back timely.
Now, my second H1B application is denied today. What should I do in this case.
I know I am not authorized to work after Apr-23 but can I stay in US as my first H1B application is not denied yet.
Hi @vk_giri
My advice would be to stop working and leave USA on Apr 23, 2018, if your 240 days are completing.
You cannot work beyond 240 days of i94 expiry without a valid H1b status.
Let me know if you need more information.
Thanks Anil I would definitely stop working but as I my first application is still in waiting still its an advise to leave. I haven’t talk to my attorney yet also they have not received the hard copy of the denial but will receive by Apr-23. Pleas suggest.
Hi @vk_giri
Yes, it is important to leave USA and wait for your application decision outside USA.
If you stay in USA, you will be ‘out of status’ and it can affect your Green card application in future (if you have already applied for it.)
See this for more information:
Thanks Anil. I will respond and will discuss the same with my Attorney.