Posts Tagged ‘extension of stay’
What happens if my H-1B petition is approved, but my extension of stay is denied?
The petitioner of an H-1B change of employer petition or extension petition may request, as part of the petition, that the beneficiary’s stay be extended in the U.S. If the USCIS finds that the beneficiary has not maintained his/her H-1B employment/status during the prior H-1B validity period, the USCIS may approve the underlying H-1B petition but deny the request for beneficiary’s stay to be extended. In these cases, a denial notice strictly for the extension piece will be issued.
In order to work in H-1B status once the extension piece is denied, the beneficiary must go to a U.S. Consulate abroad and obtain an H-1B visa. Once he/she re-enters the U.S., he/she can resume H-1B employment.
The timing for the beneficiary’s departure from the U.S. to visit the Consulate is dependent upon the denial notice for the extension. Once it is issued, the beneficiary must depart the U.S. immediately. If the beneficiary remains in the U.S., he/she will start accruing what’s known as “unlawful presence” each day he/she stays beyond the denial date. This could complicate the beneficiary’s chances of obtaining the H-1B visa abroad and being allowed to continue working in the U.S.
Please contact our immigration law firm if you are facing this issue or would like to discuss the requirements for extending your stay in the U.S.
Tags: extension of stay, H-1B change of employer, h-1b extension, H-1B transfer, H-1B visa
Posted in FAQ H-1B | Read More »
I’ve been laid off from my H-1B job: do I have a grace period?
The short answer is, no. While an H-1B employee has 10 days to leave the U.S. after the expiration of H-1B status, the“10 Day Rule” is only triggered upon expiration of H-1B status and not upon terminations prior to the H-1B expiration date. If you are terminated from your H-1B position, your options are to:
Depart the United States within a reasonable period (the regulations don’t specify what is “reasonable” under the circumstances);
Change your status to another nonimmigrant category (such as B, F-1, H4, etc.) before the last date of employment;
File a change of employer petition and request for extension of stay before the last day of employment along with pay stubs showing that you’ve been maintaining status. If your change of employer petition is filed after the date of termination, you will not be eligible for an extension of stay. In that case, you may file a change of employer petition, and then upon approval of that petition, you will need to depart the U.S., apply for a new H-1B visa at a U.S. consulate abroad and then re-enter the U.S. You will not be subject to the H-1B numerical cap in either situation.
Some general advice: work with your employer to see if the employer is willing to restructure the date of termination so as to allow you to remain in H-1B status for a longer period of time. Please note that what determines whether or not you are out of status is the actual date of termination, not whether you are receiving severance payments from the employer. Continuing to receive compensation from your employer will not maintain your status if the date of termination has already occurred. Lastly, consult with an immigration attorney. Falling out of status can have far-reaching implications for your future in the U.S. Make sure that you have all of the information you need to make the best decisions possible.
Tags: change of employer, extension of stay, H-1B, H1b, layoff, termination
Posted in FAQ H-1B, H-1B | Read More »
