I-129 Petition denial

[samman13191]

Hi, I recently changed my employer and new employer filed H-1B transfer. It went to first RFE and then denial. I am not sure about exact reason behind denial at the moment as my employer has not yet received denial notice. My stamped visa with old employer got expired few weeks back and my I-94 is about to expire in few days. I have few queries regarding my case:

(1) Am i considered out of status and acrruing unlawful presence right now?
(2) My employer said that they will file a new I-129 petition for me. Can they do that as current one is already denied.
(3) If at all i have to travel back, how many days of grace period i have?


Thanks in advance.

[newacct]

Hi, I recently changed my employer and new employer filed H-1B transfer. It went to first RFE and then denial. I am not sure about exact reason behind denial at the moment as my employer has not yet received denial notice. My stamped visa with old employer got expired few weeks back and my I-94 is about to expire in few days. I have few queries regarding my case:

(1) Am i considered out of status and acrruing unlawful presence right now?
(2) My employer said that they will file a new I-129 petition for me. Can they do that as current one is already denied.
(3) If at all i have to travel back, how many days of grace period i have?


Thanks in advance.

1. If it's been more than 60 days since you left your old employer you are out of status; otherwise you are not. But note that it is normal to be out of status when doing an extension of status or change of status. You are not accruing unlawful presence since the I-94 has not expired.
2. They can file a petition at any time, no matter where you are. But are they also requesting an extension of status with it? If they are requesting extension of status, then (assuming you are out of status) it will be untimely, and it's up to USCIS's discretion whether to accept late extension of status filings, so you may end up with the petition being approved but the extension of status denied. Also, an untimely extension of status does not protect you against accruing unlawful presence (whereas a timely one does).
3. You only have 60 extra days of status when you stopped working for your old employer. You are not in status now because you never got a new period of status granted by extension of status, so you don't get any extra days of status when you don't have status to begin with.

[samman13191]

1. If it's been more than 60 days since you left your old employer you are out of status; otherwise you are not. But note that it is normal to be out of status when doing an extension of status or change of status. You are not accruing unlawful presence since the I-94 has not expired.
2. They can file a petition at any time, no matter where you are. But are they also requesting an extension of status with it? If they are requesting extension of status, then (assuming you are out of status) it will be untimely, and it's up to USCIS's discretion whether to accept late extension of status filings, so you may end up with the petition being approved but the extension of status denied. Also, an untimely extension of status does not protect you against accruing unlawful presence (whereas a timely one does).
3. You only have 60 extra days of status when you stopped working for your old employer. You are not in status now because you never got a new period of status granted by extension of status, so you don't get any extra days of status when you don't have status to begin with.

Thank you @newacct. I have an approved extension of stay through my old employer. Does it help?

[newacct]

Thank you @newacct. I have an approved extension of stay through my old employer. Does it help?

If you have an approved extension of stay then you got an I-94 with the approval. Regardless, it's the last I-94 that matters (the last I-94 is the only valid I-94). I thought you said your I-94, meaning your last I-94, will expire in a few days.

[samman13191]

If you have an approved extension of stay then you got an I-94 with the approval. Regardless, it's the last I-94 that matters (the last I-94 is the only valid I-94). I thought you said your I-94, meaning your last I-94, will expire in a few days.

Great. Thanks