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Ask Guillermo J. Senmartin, Esq. Your Own...
Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 105572
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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Hi, my nieces application for H1B was denied and she is in

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Hi, my niece's application for H1B was denied and she is in the process of appealing.
She filed her I-140 before receiving the denial notice. She is a nurse and was working in a hospital with Practical training (OPT) before filed the H1-B petition.
My question is that since her OPT already expired and now she received the H1-B denial letter. During her appealing, is she authorized to work? I have consulted several attorneys and it seems to be a tricky issue. Any help will be highly appreciated. Thanks again for your time and advise. -Mike
Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one.



I would have to say that no, she cannot work. She can stay while the appeal is pending, but she doesn't have work authorization since her OPT expired. Here is a link that refers to policy guideance in this area:


http://www.ice.gov/doclib/sevis/pdf/opt_policy_guidance_042010.pdf



I know it is a tricky issue, but I would err on the side of caution. Remember that these restrictions exist for a reason and that is to make sure that foreign labor does not take away jobs for U.S. workers. Because of the poor economic conditions in the U.S. right now, lots of unemployed U.S. workers and few jobs available, USCIS would love any opportunity to look into a "gray" area and rule against her to make sure a job is freed up for a U.S. worker. So I would not work if I were her. It's just safer.


Please let me know if you have additional questions and please do not forget to rate my service to you (not the state of the law) as that is the only way that I can get credit for my assistance to you. Even after you rate the service, I can still answer additional questions for you without additional charge. If you do rate me positively, a bonus is always appreciated. If you would like to request me in the future, just go to http://www.justanswer.com/law/expert-guillermosenmartin/ and make sure you type: FOR GUILLERMO on the subject line. Thank you!




Guillermo J. Senmartin, Esq. and 2 other Immigration Law Specialists are ready to help you
Customer: replied 3 years ago.

Dear Guillermo ,


 


Thanks for the quick response and the suggestion. I agree with you that this is the area and time extra caution is needed.


We have consulted several attorneys with different opinions. If possible, I am trying to get some answer or at least some hints from USCIS document or policies. The document you provided seems a good document. To us, it is a long article. I wonder if it is possible that you can highlight the part relating to my niece's situation?


 


Thanks again,


Mike

You may not find anything that is exactly specific to the case. This is why you keep getting differing opinions from different attorneys. In the memo, you can focus on chapters 6 and 7. Again, I recommend that she not work.

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