Immigration Lawyer Ari Sauer – The Immigration Answer Man

Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.

My H-1B extension of status has been denied. Can I still leave the U.S. and reenter on a new H-1B visa?

By Ari Sauer, immigration lawyer with the Memphis, Tennessee office of the Siskind Susser Law Firm.

QUESTION- I have been working in the US in H-1B status for three years. Shortly after I came to the U.S. my company transferred me to a different location, but never filed an amendment to my H-1B. Last year my company filed an extension of my H-1B petition, but due to the fact that I had been working in a different location, my Extension of Status was denied. My company has filed an appeal of the denial to the Administrative Appeals Office, but I am not hopeful about the chances of the denial being overturned. My company has filed an I-140 petition for me, but I have not filed an I-485 application for adjustment of status as a visa is not yet available for my petition. What are my options?

ANSWER- Your biggest concern is that you have begun to accrue unlawful presence [INA Section 212(a)(9)(B)] as of the date that your extension of status was denied. The fact that the denial has been appealed does not stop unlawful presence from accruing. If you remain in the U.S. more than 180 days from the date of your denial you will be limiting your options.

However, if you leave the U.S. before then, you can have your company file a new H-1B petition for you and you can apply for a new H-1B visa. Your past violation should not bar you from being able to receive a new H-1B visa, since there was no fraud, but only an oversight on the part of your company. For an additional premium processing fee of $1,225 in addition to the standard filing filing fee, your company can premium process the petition, so that it will only take a few weeks to have the new petition approved.

Of course this is all based on the small amount of information provided. So you should consult with an experienced immigration lawyer as soon as possible.

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