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H1B extension denied after RFE for LCA

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  • H1B extension denied after RFE for LCA

    Hi,

    My H1B extension got denied on Apr 20, 2010. I got the letter today and the reason for denial is that the LCA was not submitted with the original application. My employer had already submitted a LCA (but the dates mentioned in the LCA did not match with my I94) and a RFE was generated for which my employer sent a new LCA. Now can I consider it as USCIS mistake and go for appeal? If so how long it would take for USCIS to give the decision and what is the chance of getting the decision in my favor? Or as safer bet can I ask my employer to file a new H1B application ( I was in H1B for just one year)? In which case I have to go to India for Visa stamping. Would there be any issues in getting the visa? My I94 expired on Feb 28, 2010 and i have already accrued 60 days of illegal stay. I planning to leave US in 10 days. Will that be enough to get a new Visa stamp?
    Any help would be appreciated..
    Thanks

  • #2
    Hi nsb:

    I need some info if you can,,,

    i got an offer from an employer recently, i sent all docs for transfer on 5th APRIL,,,,till date i havent got any receipt notice or approval notice from him......

    when i checked with the recruiter he sent me a copy of the LCA that was posted,,,,from the mail i came to know that the LCA was posted only on 21st APRIL....so does it mean that they havent still processed my H1B all these daysss......

    Is it like LCA is posted first and then they go for H1B transfer petition........

    what do you think my situation is???? Please advise...

    Thanks,
    Vinod

    Comment


    • #3
      Hi Vinod,

      Prior to filing the H1B application an LCA should be applied. In your case, since your employer filed for LCA on 21st Apr, it seems they are waiting for it and once they receive the LCA (would normally take 7 days from the date of filing) they will proceed for H1B filing. Based on the type of processing it would take 15 to 60 days for the H1B process to complete.

      nsb

      Comment


      • #4
        Hi nsb:

        Thanks for the reply....

        Today I got an email stating they just filed my petiton yesterday....But i am not convinced with the situation and dosent want to take the offer,,,,will it be ok if i reject the offer now,,,will they be able to withdraw the application immediately,,,or will i be in trouble......

        or is it better to reject the offer once i get the approval.....what would you suggest...

        Thanks again for ur reply...

        Cheers...
        Vinod

        Comment


        • #5
          Originally posted by vinodk366 View Post
          Hi nsb:

          Thanks for the reply....

          Today I got an email stating they just filed my petiton yesterday....But i am not convinced with the situation and dosent want to take the offer,,,,will it be ok if i reject the offer now,,,will they be able to withdraw the application immediately,,,or will i be in trouble......
          ---------------------Inform them that you will join only AFTER you get H1 approval notice with I-94 attached.
          or is it better to reject the offer once i get the approval.....what would you suggest...
          -----------------you can. Make sure your Present employer dont revoke your H1 petition by writing to USCIS.

          Thanks again for ur reply...

          Cheers...
          Vinod
          ---------------
          Remember, I am strictly a layperson without any legal training. Please, if in doubt, be sure to use the services of a professional lawyer whom you trust.

          Comment


          • #6
            Hi ginnu:

            Thank you for your response.

            I would surely let them know, i can join only after getting the original APPROVAL NOTICE WITH I-94.... But what if I am asked to sign the offer letter before getting the APPROVAL NOTICE in hand... will that put me introuble???

            I am on H4 now and they are doing COS from H4 to H1.

            Again, what if they don't give me the approval notice???? How can i put myself back to H4 immediately without the approval notice in hand ?????


            How long i can stay in US without joining an employer when my H1B starts rolling????

            Your response is highly appreciated.

            Thanks again!!

            Vinod

            Comment


            • #7
              Originally posted by vinodk366 View Post
              Hi ginnu:

              Thank you for your response.

              I would surely let them know, i can join only after getting the original APPROVAL NOTICE WITH I-94.... But what if I am asked to sign the offer letter before getting the APPROVAL NOTICE in hand... will that put me introuble???
              --------------depends on the letter
              I am on H4 now and they are doing COS from H4 to H1.
              -------------I dont understand why you filed H4 to H1 if you dont want to be on H1? I dont think employer forced you to file H4 to H1?
              Again, what if they don't give me the approval notice???? How can i put myself back to H4 immediately without the approval notice in hand ?????
              --------------you will need approval notice to file H1 to H4 COS.


              How long i can stay in US without joining an employer when my H1B starts rolling????
              -------------------- once you get H1 approval notice you need to work and employer must pay you or you will be out of status. if you dont want to work on H1 file H4 COS or go out and get H4 visa then enter on H4 status. for more info you should talk to your lawyer.

              Your response is highly appreciated.

              Thanks again!!

              Vinod
              -----------------
              Remember, I am strictly a layperson without any legal training. Please, if in doubt, be sure to use the services of a professional lawyer whom you trust.

              Comment


              • #8
                Hi ginnu:

                Thank you for your immediate response.

                Actually the employer was not clear, he got the papers from me and never said HE IS NOT INTERESTED,,,, but there was some confusion from their side and they never processed my document for 1 month,,,,,,i was under the impression that they were processing and did not ask anything about that......

                Now suddenly they filed the H1B.....

                Say after getting the Approval, if they don't give me the approval notice...in hand, i want to go out of country and come back on H4...

                How does that work, the VISA OFFICER might ask me about the H1 that has been processed recently right....does the NEW H1B gets automatically invalid if i go out and come back on H4......
                Please advise... Thank u for your time.......

                Regards,
                vinod

                Comment


                • #9
                  Originally posted by vinodk366 View Post
                  Hi ginnu:

                  Thank you for your immediate response.

                  Actually the employer was not clear, he got the papers from me and never said HE IS NOT INTERESTED,,,, but there was some confusion from their side and they never processed my document for 1 month,,,,,,i was under the impression that they were processing and did not ask anything about that......

                  Now suddenly they filed the H1B.....

                  Say after getting the Approval, if they don't give me the approval notice...in hand, i want to go out of country and come back on H4...

                  -----They should give you H1 approval notice once H1 gets approved. If you want to Enter on H4 why wait for H4 to H1 approval? go out get H4 visa stamp and enter on H4 status.

                  How does that work, the VISA OFFICER might ask me about the H1 that has been processed recently right....
                  does the NEW H1B gets automatically invalid if i go out and come back on H4......

                  ------- Change of Status gets Abandoned if you depart US before your COS gets approved . why are you waiting for H1 COS approval notice if you want to be on H4? go out of US get H4 visa stamp and enter on H4 status. What is the validity of your H4 based I-94?

                  Please advise... Thank u for your time.......

                  Regards,
                  vinod
                  -----------------
                  Remember, I am strictly a layperson without any legal training. Please, if in doubt, be sure to use the services of a professional lawyer whom you trust.

                  Comment


                  • #10
                    Hi Ginnu:

                    Thank you for the response,,,,sorry i think i have asked the same question again and again in my other thread...

                    Last when i left out of country and entered was in OCTOBER 2007 (I was on H1 that time) (the I-94 DEPARTURE CARD shows Admitted on OCTOBER 15 2007)

                    I went for COS from H1 to H4 during AUGUST 2009, after which i have never been out of US... The H4 Approval Notice which i currently have has a validity till NOV 2011....

                    I never went out of US after my COS to H4 and i dont have a I-94 departure card based on my H4.....

                    I am in total trouble...

                    Please advise.

                    Regards,
                    vinod

                    Comment


                    • #11
                      Originally posted by vinodk366 View Post
                      Hi Ginnu:

                      Thank you for the response,,,,sorry i think i have asked the same question again and again in my other thread...

                      Last when i left out of country and entered was in OCTOBER 2007 (I was on H1 that time) (the I-94 DEPARTURE CARD shows Admitted on OCTOBER 15 2007)

                      ----------------The I-94 card you got when you enter US on October 2007 should have Validity date on it. Check Valid till..... Also check the Stamp you got in your passport at POE on October 2007 and it should have valid Till....... you dont know what was Expiry date of I-94 that you got when came to US?????

                      I went for COS from H1 to H4 during AUGUST 2009, after which i have never been out of US... The H4 Approval Notice which i currently have has a validity till NOV 2011....
                      ------------------------When you filed H1 to H4 Change of status then your H1 based I-94 should be valid and USCIS approved COS because you had valid I-94 based on H1 status. You got H4 approval notice and that H4 approval notice should have I-94 attached at lower part of H4 approval notice. Look at the RIGHT side of Lower part of your H4 approval notice and also look at Lower Left side (The I-94 attached with any approval notice is NOT WHITE it is same color of approval notice. One gets WHITE I-94 when enter US through POE and you get the Blank I-94 form in Flight that you fill up and give it to officer at POE when you give your Passport.

                      I never went out of US after my COS to H4 and i dont have a I-94 departure card based on my H4.....
                      --------------------------if your H1 to H4 COS was approved then USCIS attached I-94 with your H4 approval notice and you dont know how to look at I-94. Why you dont have I-94? where is your I-94? if your employer filed H4 to H1 COS how the employer can file H4 to H1 COS if one does not have valid I-94??


                      I am in total trouble...

                      Please advise.

                      Regards,
                      vinod
                      ---------------
                      Remember, I am strictly a layperson without any legal training. Please, if in doubt, be sure to use the services of a professional lawyer whom you trust.

                      Comment


                      • #12
                        Hi Ginnu:

                        Sorry for a delayed reply... I was caught up with all the pressure, where i visited my previous employer looking for to join him.

                        The I-94 card you got when you enter US on October 2007 should have Validity date on it. Check Valid till..... Also check the Stamp you got in your passport at POE on October 2007 and it should have valid Till....... you dont know what was Expiry date of I-94 that you got when came to US?????

                        The Valid date is till Oct 2008....I have to go for stampiing again if i go out of country.....

                        ------------------------When you filed H1 to H4 Change of status then your H1 based I-94 should be valid and USCIS approved COS because you had valid I-94 based on H1 status. You got H4 approval notice and that H4 approval notice should have I-94 attached at lower part of H4 approval notice. Look at the RIGHT side of Lower part of your H4 approval notice and also look at Lower Left side (The I-94 attached with any approval notice is NOT WHITE it is same color of approval notice. One gets WHITE I-94 when enter US through POE and you get the Blank I-94 form in Flight that you fill up and give it to officer at POE when you give your Passport.

                        The H4 approval notice which i have currently dosent have a I-94 at the bottom,,,it says it is a courtesy copy of me and the attorney who helped me file the COS from H1 to H4 then has the original copy it seems....i havent looked at that alll these days properly as i was totally stuck with my exams.......But that attorney never sent that copy to me...what if they don't have that in their file now....

                        ------------------------if your H1 to H4 COS was approved then USCIS attached I-94 with your H4 approval notice and you dont know how to look at I-94. Why you dont have I-94? where is your I-94? if your employer filed H4 to H1 COS how the employer can file H4 to H1 COS if one does not have valid I-94??
                        I dont know how they filed for COS from H4 to H1 with the I-94 that was valid only toll OCT2008..... I never gave them a I-94 that belongs to my H4 for processing my current petition (as i never had that).

                        Comment


                        • #13
                          Wrong rate of pay on LCA.. URGENT!

                          Hi..

                          I am currently working for an employer in the US. My H1B was applied in April 2012 and approved. I recently found out the rate of pay on my LCA was wrongly quoted at $63328. My pay was quoted at $60000 per year on my offer letter, my I-129 and that is what I have been getting paid.My prevailing wage on LCA is $58422. My lawyer says that it was a typing error.
                          Will this be an issue during my H1B stamping? I am planning to go for stamping in 1 month
                          Should I get a LCA amendment for this error? In that case, will I need a H1B amendment too?
                          Or will a letter from my employer and attorney explaining the error be enough?

                          Please reply!

                          Thanks,
                          Neethu

                          Comment

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