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Options after re-stamping is refused under 221(g)

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  • Options after re-stamping is refused under 221(g)

    Hi,

    Back Story:
    I went to US in May 2014 on H1-B working for Employer A. In Feb 2016, I moved to work for Employer B (small US based company, on other offices) with H1-B transfer receipt.
    The new job was remote work, so I started working from home for Employer B.
    I received RFE in April 2016 and I went to India the same month. While I was in India, the transfer got approved in June 2016 and I came back to US with the approval notice as proof.
    My visa was getting expired in Sep 2016, so extension was filed with Employer B. The extension also got approved after RFE and extended till Sep 2019.

    Current Situation:
    Now, I came to India in Jan 2017 for my marriage. I went for visa stamping in Delhi with my wife (for H4) in Feb 2017. The visa officer asked me about my Role, client, and other common questions which I answered correctly. VO then collected my documents (I-129, client letter etc) and handed me 221(g) letter saying that he needs some time to review the documents. We left the embassy and the wait started.
    In March 2017, I received an email from embassy asking for the latest LCA which I promptly provided.
    After that there was no response for a few months, and I started working from India in US hours. Since my employer is a small company, they did not hire any attorney and did the processing themselves. They also did not seem to put any effort to expedite or help the process.
    In July 2017 (after 5 months), I received a call to collect the passport. On collecting the passport, the stamping was not done and I received a letter stating that my stamping is being refused and visa is sent to consulate for revocation.
    This came as a shock. I notified my employer, they were disappointed and did not know what can be done about this case. When I enquired, they said they don't want to spend more resources on this case and are fine with me continue working from India (reduced salary).

    I am now trying to see what options do I have. My questions:

    1. Is it possible to have the case reconsidered and to know the exact reason for refusal? If yes, how would I go about it without the support of my employer?
    2. If this is only for stamping, how long will my extended visa be valid? Can I try the stamping again with this employer or find a new employer from India and use the same visa with them?
    3. In case the rejection also invalidates my extended visa, what are my options to visit USA again? If I apply for a new H1-B, can I apply before April or under 'H1B cap exempt'? What else can I try?

    If there is no scope to go back, what are my options in India:
    4. What happens to my assets (personal stuff, bank accounts, etc) in US?
    5. Can I continue to work with same employer from India (as a permanent employee) and receive the salary in my US bank account?
    6. If I can legally work for the same employer, how does it affect my taxes? Do I now pay taxes in India and in US both? Since when I can be considered liable to pay tax in India (when I came to India or stamping refusal date etc)?
    7. If I can no longer be a permanent employee, what other options do I have to work for that employer?

    Last year was a complete roller-coaster for me. Please guide me so that I can bring it to a stop.

    Thanks,
    SJ

  • #2
    Originally posted by SJoker View Post
    Hi,

    Back Story:
    I went to US in May 2014 on H1-B working for Employer A. In Feb 2016, I moved to work for Employer B (small US based company, on other offices) with H1-B transfer receipt.
    The new job was remote work, so I started working from home for Employer B.
    I received RFE in April 2016 and I went to India the same month. While I was in India, the transfer got approved in June 2016 and I came back to US with the approval notice as proof.
    My visa was getting expired in Sep 2016, so extension was filed with Employer B. The extension also got approved after RFE and extended till Sep 2019.

    Current Situation:
    Now, I came to India in Jan 2017 for my marriage. I went for visa stamping in Delhi with my wife (for H4) in Feb 2017. The visa officer asked me about my Role, client, and other common questions which I answered correctly. VO then collected my documents (I-129, client letter etc) and handed me 221(g) letter saying that he needs some time to review the documents. We left the embassy and the wait started.
    In March 2017, I received an email from embassy asking for the latest LCA which I promptly provided.
    After that there was no response for a few months, and I started working from India in US hours. Since my employer is a small company, they did not hire any attorney and did the processing themselves. They also did not seem to put any effort to expedite or help the process.
    In July 2017 (after 5 months), I received a call to collect the passport. On collecting the passport, the stamping was not done and I received a letter stating that my stamping is being refused and visa is sent to consulate for revocation.
    This came as a shock. I notified my employer, they were disappointed and did not know what can be done about this case. When I enquired, they said they don't want to spend more resources on this case and are fine with me continue working from India (reduced salary).

    I am now trying to see what options do I have. My questions:

    1. Is it possible to have the case reconsidered and to know the exact reason for refusal? If yes, how would I go about it without the support of my employer?
    2. If this is only for stamping, how long will my extended visa be valid? Can I try the stamping again with this employer or find a new employer from India and use the same visa with them?
    3. In case the rejection also invalidates my extended visa, what are my options to visit USA again? If I apply for a new H1-B, can I apply before April or under 'H1B cap exempt'? What else can I try?

    If there is no scope to go back, what are my options in India:
    4. What happens to my assets (personal stuff, bank accounts, etc) in US?
    5. Can I continue to work with same employer from India (as a permanent employee) and receive the salary in my US bank account?
    6. If I can legally work for the same employer, how does it affect my taxes? Do I now pay taxes in India and in US both? Since when I can be considered liable to pay tax in India (when I came to India or stamping refusal date etc)?
    7. If I can no longer be a permanent employee, what other options do I have to work for that employer?

    Last year was a complete roller-coaster for me. Please guide me so that I can bring it to a stop.

    Thanks,
    SJ
    The issue pretty much is "my employer is a small company, they did not hire any attorney and did the processing themselves. They also did not seem to put any effort to expedite or help the process."

    1. Without employer support its useless going ahead with same employer. You would need to start thinking about a new, more cooperating employer.
    2. As mentioned better try with new employer.
    3. You never got an "extended visa" what you got was only the extended petition(till 2019), which apprently is sent back to USCIS for revocation based on the consular officer's feedback.Finding a newer employer willing to file cap exempt or newer petition for you is the best option.
    4. You need to find a family/friend in US to have them sell the stuff or move them to a storage location. As for bank accounts, you can keep them open, but they may have some charges associated.
    5. Yes you can. You can work for employer, but not in US.
    6. You can work for employer, but not in US. As for taxes, you need to pay taxes as per the country of residence for the tax year. It seems you have been out of US since Jan 2017, and does not look like that you may be able to come back within next few months, so most likely you will not be a "resident of US" for tax purposes for FY Year 2017. At the same time, since you would have spent more than 6 Months in India, you are liable to pay taxes in India. I would advise consulting a tax expert.
    7. This is a question you have to ask your employer, USCIS does nto restrict you from working for that employer outside US.

    This is my opinion not legal advice.

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