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I-797C Not eligible for the requested change of status

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  • I-797C Not eligible for the requested change of status

    Hi,

    I am currently on F1 (OPT) which will expire on June 29, 2011.

    My company filed an H1B petition in February 2011 but since the visa quota got over, I couldnt get the visa. Apparently I did not know that they had filed. I only knew that they couldnt file because the quota got over.

    Hence, I made a trip to India in March and returned in the last week of March 2011. I thought I knew that the rule states that if I leave the country while the visa application has been filed, then the visa application gets abandoned.

    I believe the miscommunication that happened earlier in February has now got me into trouble.

    Now the lawyer got back to me with the I-797 C which clearly states

    "It has been determined that the named worker(s) are not eligible for the requested change of status"

    In this circumstance, I believe the lawyer is mentioning something about a motion to reconsider or something similar. However, I am not confident if that is the correct path. Please advise.

    Also, I am not sure what are the possible ramifications of this I-797C. [LIST=1]
    • Do I have to back in June 2011 and return in October 2011 ?
    • Is there something legal that I can pursue to get this corrected ?
    • Would my cap gap I-20 be issued or not ?


    Please advise soon !

    Thanks
    Last edited by samkap; 05-24-2011, 09:04 PM.

  • #2
    Please advise soon !

    Comment


    • #3
      I don't think you are eligible for a Cap-Gap extension since your H1B petition was approved for consular processing instead of an automatic COS to H1B starting Oct 1st. The best option is to leave the country before your current I-94 expiry date and return back on H1B visa on or after September 21st (You can travel only 10 days prior to your H1B effective date).
      Not a legal advice. Use of this information is strictly at your own risk.

      Comment


      • #4
        My I-94 states, class F-1 until DIS

        what is DIS

        Also, will the "motion to reconsider" have any impact ? I wonder if there is a legal step here. I have heard that the lawyer can send a letter to USCIS requesting a change from consular processing to COS processing. Any insights into this process will be helpful.

        Also is it possible to cancel this application altogether and refile afresh with the regular COS method so that I dont have to leave the country.
        Last edited by samkap; 05-25-2011, 08:22 AM.

        Comment


        • #5
          Did your employer file the petition after Apr 1 again? This notice of action that you mention, does this state that the petition has been approved?
          This is my opinion and not legal advice.

          Comment


          • #6
            Yes, the petition seems to be approved. It clearly states the following:

            The above petition has been approved for the classification requested. It has been determined that the named worker (s) are not eligible for the requested change of status.

            Date of filing - I am not sure. I believe it was before April 1.

            Today I found out that they are sending I-129 Supplement H to the USCIS. I am not sure what is this for !

            How does it pan out now in light of this information ?
            Last edited by samkap; 05-26-2011, 12:30 AM.

            Comment


            • #7
              Here are a few things to check.
              Petition valid from date. If this is Oct 1, petition was filed on or after Apr 1.
              Check with your school's DSO whether your SEVIS record is active. Is there any reason why your F1 status may have been terminated?
              Traveling while H1 is pending is also a problem, since your I-94 number changed after traveling, your previous I-94 may have been used for H1 petition.
              Your employer will have to file amendment to change your status. It must be filed before your OPT ends in order for you to work continuously. Consult an experienced lawyer on your own.
              This is my opinion and not legal advice.

              Comment


              • #8
                is there a name to this ammendment ?

                any tentative timeline for getting the result of the same.

                Comment


                • #9
                  Any updates

                  Comment

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