H1b h4 npt

[sguser]

Hi All,

Requesting your help for my unique case. My H1 was denied in June 2020 after my I94 expired in Sept 2019. Since I could not travel due to covid, my attorney filed a H4 COS in NPT (Nunc Pro Tunc) within 2 days. The H4 case is now pending. Employer is asking to file new H1B based on the H4 COS. Following are my questions:

1. Can the new H1B be filed as another NPT or it has to be on the H4 (yet to be approved) back to COS to H1B.

2. If the H1B can be filed as another NPT, will the dates be adjusted from I94 expiry or denial date?

3. If the H1B NPT has to be adjusted from I94 date, will it cause a risk in approval odds, as it expired last year?

4. Will this answer be any different if I file the H1B NPT with new employer?

5. Otherwise if we file the H1B as COS from the H4, which takes around 5-6months to approve, will it be a problem for the H1B to be approved?

Thanks in advance for responding to me scenario.

[jack.c.sung]

1. It can be both NPT or based on an approved H-4 status. But either way, this new H-1b will likely be approved for consular processing (I-797B) only because of the gap in your status.

2. I-94 expiration date.

3. Yes, the longer it had been expired, the less likely USCIS will grant NPT. It also depends on whether the last H-1b denial was proper or improper. If USCIS made a mistake on the last H-1b denial, it will take that into consideration when reviewing your NPT request.

4. No. Probably the same result.

5. No, but employer probably won't want to wait that long. Best strategy now is to file H-1b petition and request NPT. If NPT is not approved, then exit the US and re-enter the US with H-1b visa and the new approval notice to be back on H-1b status.

[sguser]

Thanks for your detailed response.