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Guillermo J. Senmartin, Esq.
Guillermo J. Senmartin, Esq., Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 108978
Experience:  10+ years of experience in various aspects of U.S. Immigration Law.
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If H1B is denied and subsequently files for an appeal or MTR,

Customer Question

Original H1 expired and extension H1B request is denied and subsequently files for an appeal/MTR, is the person legal to stay in US and work while the appeal is pending with AAO office?
Submitted: 8 years ago.
Category: Immigration Law
Expert:  Guillermo J. Senmartin, Esq. replied 8 years ago.
Yes, they are still pending process, so it is not a final determination on the case as long as the appeal is pending. So they can continue on as they were before.
Customer: replied 8 years ago.
I Accept the answer and i request you to clarify one more issue..

Here are the details of the case

Original H1B expired sept 30th 2007
H1B extension denied Feb 18th 2008
Appeal filed March 5th 2008

unfortunately incase the appeal is denied, is the person considered to be out of status from Feb 18th 2008? And since it is more than six months from Feb 8th in case the appeal is denied how is it going to affect any future H1B applications.. we have also filed another H1B from another employer on March 9th 2008 and this H1B is also still pending. Please adice
Expert:  Guillermo J. Senmartin, Esq. replied 8 years ago.

Now, they would be out of status from the date that a final determination is made.

 

If the appeal is denied, any future H-1Bs will look at any illegal time if any. If you leave soon after the appeal is denied, you should not have a big problem trying to get another H-1B from outside the U.S. as long as you meet all the qualifications.

 

Guillermo J. Senmartin, Esq. and 2 other Immigration Law Specialists are ready to help you
Customer: replied 8 years ago.
Sir, In shiela murthy's forum it clearly says that if appeal is denied and if we overstay for more that 180 days from intial H1 denial or overstay for more than 1 year of I94 validity, it might attract a ban of 3 years to 10 years.. i am slightly confused what to believe can you please confirm again that the ban applies only after final denial of the appeal.
Expert:  Guillermo J. Senmartin, Esq. replied 8 years ago.

You just said it yourself, IF the appeal is denied. So yes, you would be out of status IF the appeal is denied. You have to hope that the appeal is approved. If not, you are deemed out of status.

 

And yes, this is correct. IF the appeal is lost, the out of status time accrues from the time the H-1B expired. So as of now, you already have more than 180 days out of status IF the appeal is denied. You would have had to leave before March 30, 2008. Once you pass September 30, 2008, you will have accrued more than a year out of status and will activate the 10 year bar.

 

So as of now, you are already in trouble. The decision that you have to make is if you want to risk the 10 year bar or not.

Customer: replied 8 years ago.
This is contradicting to an answer you earlier gave - "Now, they would be out of status from the date that a final determination is made" and now you say from intial denial.. don't you think its contradicting?
Expert:  Guillermo J. Senmartin, Esq. replied 8 years ago.
It is contradictory. I apologize for the confusion. I am correcting my earlier statement. If your appeal is lost, you are deemed out of status from September 30th 2007. I know it isn't the news that you want to hear, but it is correct. I did some double checking. I was under the mistaken impression that the newer AC21 provisions enacted by President Clinton allowed more leniency with the H-1B and indeed, many things are more lenient, but this was not one of them. Again, I apologize for the confusion, but my revised statement is correct. If your appeal is denied, you will already have had more than 180 days out of status since March 30, 2008 and you are coming up on 1 year out of status....IF your appeal is lost.

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