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Urgent: H1B Extension Denied Pending 140 and 485 H Visa

Discussion in 'Investment, Work Visa' started by meeza4u, May 7, 2008.

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  1. meeza4u

    meeza4u Law Topic Starter New Member

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    Here is my situation.

    To keep my status active I filed my 7th year extension on Feb 1st 2008 and it was denied stating the following reason that my LC was not filed with in 365 days and as the beneficiary has spent more than 6 yrs in the US in H1 classification and is subjected to the limitation of stay pursuant to 8 CFR 214.2 (H)(13)(iii)(A), further extension of the visa petition validity may not be granted. The petitioner has not shown that the beneficiary either resides outside the Us and commutes to the US to engage in part-time or that the beneficiary’s employment in the Us was seasonal, intermittent, or was for an aggregate or six months or less per year. Additionally, the beneficiary of this petition must be physically present outside the US for one year before returning to the US as a H or L nonimmigrant alien. Therefore, the beneficiary is ineligible for classification as a specialty occupation worker.

    Pursuant to INA 291, the burden of proof in these proceedings rests solely with the petitioner. Here that burden has not been met. Consequently, the petition is denied for the above stated reason.

    Long story short, My then CTO who was responsible for handling my paper works was involved in some fraudulent activity and was let go and he failed to turn in my paperwork’s on time to my current CEO and my current CEO after receiving all the paper works went ahead and filed it on April 30 which is a month in to my 365 days of my H1B expiration and my LC got approved. My H1B expired on March 28 2008.

    My employer was unable to file my LC on time and they filed it with in 365 days of my last year in H1B. On May 15th 2007 my LC was approved and based on the approval I filed for my 140 and 485 which is in a pending status.

    To summarize
    LC: Applied: Apr 30 2007 Approved: May 15 2007

    I140: Applied: 9th July 07 PENDING

    Received EAD Oct 1 2007

    I485: Applied: Sept 7 2007 PENDING

    Here are my questions

    1. Since I am filing an appeal with USCIS, can I LIVE and WORK in the US legally with my EAD. If so, for how long?

    2. The option to appeal was only there with my H1B extension denial notice. Basically, I want to know where that puts my wife's h4 extension denial.

    3. In what way would this denial notice affect my PENDING I140 and I485 application? What should I do to keep them in an active status?

    4. After my appeal has been filed, what other procedures or precautionary measures would you advise me to take in order to not jeopardize my future in entering/living in the US?

    I would appreciate if you could provide any reference to legal documents authorized by USCIS that states so from any reliable authority.

    Than you
  2. mafioso

    mafioso New Member

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    H1B petitions can be very complex like in your unique situation. I can't tell you exactly what to expect without full knowledge of the file. I would advice you see an immigration lawyer specialized in work visas to take over..........Unless you have one in your HR handling it now. H1B visas and rules are complex and each result varies on a case by case basis. I don't want to go out on a limb if I am not certain..........It could hurt your status. I can't tell you with certainty what to expect in yours. But appeals are usually a 50-50 chance.

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