h1b extension of stay

[Sanjay1520]

Hello Shervin,
I got my h1b transfer petition approved but extension of stay denied. No RFE. I have been working for new employer for months using receipt. What's the best approach to take? Since petition was regular and not PP correspondence with uscis hasn't been swift with no reply as to why extension was not granted. I have a valid h1b stamp. I have correct pays stubs from previous employer.
1. Could I just go out and come back in to get a new I 94?
2. Would it better to apply for a new h1b stamp?
3. Is it also a possibility to re-apply for h1b and extension of stay with pp and hope uscis understands the circumstance?
Your replies are much appreciated.

[shervin143]

I got my h1b transfer petition approved but extension of stay denied. No RFE. I have been working for new employer for months using receipt. What's the best approach to take? Since petition was regular and not PP correspondence with uscis hasn't been swift with no reply as to why extension was not granted. I have a valid h1b stamp. I have correct pays stubs from previous employer.
>>> Ask your employer / attorney to contact USCIS or take an infopass appointment to check why your transfer got approved for consular process. Get a copy of your I-129 from your employer and check to see if they by mistake requested for CP. If not, did you travel outside U.S while the transfer is in progress? If so, that could be the reason for the approval without a I-94. Weer you on valid H1B status when you filed your transfer (with proper up to date payslips from your previous employer). If not, that could also be the reason for getting the H1B approved for CP.

1. Could I just go out and come back in to get a new I 94?
>>> Yes, you can do that. Remember, your I-94 can be issued only till the visa expiry date. If you want your I-94 to match your approved petition, you should get the visa stamped.

2. Would it better to apply for a new h1b stamp?
>>> If you want your I-94 to match the petition expiry date, then YES.

3. Is it also a possibility to re-apply for h1b and extension of stay with pp and hope uscis understands the circumstance?
>>> No. It is just a waste of time and money. Instead, ask your attorney to contact USCIS. It could be a mistake from USCIS. Did they give you a reason why they approved it for CP? If it is USCIS's mistake, they will fix it for free.

[Sanjay1520]

h1b extension of stay

Thank you Shervin! Extension of stay was requested. In the I 797B it states extension of stay was not approved and says a separate notice will be sent as to why. We haven't gotten that though. There was no gap in employment. Unfortunately the latest pay slips were not included as of the time of the transfer petition - just omission. I never left the US while petition was in progress.
1. If I use my existing stamp, is it possible to go to deferred inspection and fix the I 94 expiration date once I come back to the US?
2. Or could attorney continue to inquire with uscis and they will send another I 797 with an updated I 94 (even after I go out and come in with the shorter I 94 no)?

Hello Shervin,
I got my h1b transfer petition approved but extension of stay denied. No RFE. I have been working for new employer for months using receipt. What's the best approach to take? Since petition was regular and not PP correspondence with uscis hasn't been swift with no reply as to why extension was not granted. I have a valid h1b stamp. I have correct pays stubs from previous employer.
1. Could I just go out and come back in to get a new I 94?
2. Would it better to apply for a new h1b stamp?
3. Is it also a possibility to re-apply for h1b and extension of stay with pp and hope uscis understands the circumstance?
Your replies are much appreciated.

[shervin143]

1. If I use my existing stamp, is it possible to go to deferred inspection and fix the I 94 expiration date once I come back to the US?
>>> It may or may not work. That is a chance that you will take.

2. Or could attorney continue to inquire with uscis and they will send another I 797 with an updated I 94 (even after I go out and come in with the shorter I 94 no)?
>>> Well, if it was USCIS's mistake, they will fix it and will send you an new approval notice with an I-94 attached. If it was your employer's / attorney's fault (by not including the latest payslips while filing the transfer) then USCIS can't fix it. Without the latest payslips, they might have thought that you are out of status on H1B and so they might have approved it for CP.

[Sanjay1520]

h1b extension of stay

Hi Shervin,
I was able to go out of the US and re-enter on H1B status with the right I94 number and expiration date. Thank you for your advice!
I have two more questions.
(1) Do you think it is still worth to follow up with uscis to show that I was in status all along and should have gotten the extension of stay approved? My worry is that the fact that I didn't get the extension of stay approved can affect me in the near future as I apply for LCA and COS for a green card. To explain a little more, right now the start date of the approved petition is the petition decision date as opposed to the original requested date (the date I started my new job on portability).
(2) If it is worth following up, would uscis put the the I129 petition back to pending as they try to fix it? Or would they process it without changing it back to pending and send a new approved I 797A with the right start date and an I 94 number once they get whatever they claim is missing as evidence of my continued status from me? I don't want to do anything that will compromise my ability to work now while trying to fix a possible future issue.


Thank you.

[shervin143]

(1) Do you think it is still worth to follow up with uscis to show that I was in status all along and should have gotten the extension of stay approved? My worry is that the fact that I didn't get the extension of stay approved can affect me in the near future as I apply for LCA and COS for a green card. To explain a little more, right now the start date of the approved petition is the petition decision date as opposed to the original requested date (the date I started my new job on portability).
>>> Since you were able to return back without any issues and since you have a valid I-94 now (does the I-94 expiry date match your petition expiry date?), you are good. However, if needed, your attorney can take an infopass appointment and discuss your case with USCIS to figure out why it was approved for CP instead of COS and why the effective date is different than what was originally requested. But this won't have any impact.

(2) If it is worth following up, would uscis put the the I129 petition back to pending as they try to fix it? Or would they process it without changing it back to pending and send a new approved I 797A with the right start date and an I 94 number once they get whatever they claim is missing as evidence of my continued status from me? I don't want to do anything that will compromise my ability to work now while trying to fix a possible future issue.
>>> They may or may not put it back to pending. Like I said, if it is their problem, they will fix it for free and will do it as soon as possible. If it is a mistake on your employer's part, then they will stand by their decision. In which case, there isn't anything that you need to do since you already left and re-enter the country to get a new I-94.

[Sanjay1520]

h1b extension of stay

Hello Shervin,
Thank you for your reply. The I-94 expiry date i got when I came back to the US does match the petition expiry date.
And in fact a few days after I got back USCIS sent me an updated petition approval with a new I 94 number correcting the previous error.
Thank you very much for your help.
Much appreciated.