Can employer deny H-1b extension?
- Thread starter duhily
- Start date
raviobbu said:
Sorry that my question is unclear. I was trying to say whether or not employer can "refuse to file the H-1B extension application "while 140 is pending."
My H-1b expires in October 2006 (less than 7 months) and I wish to file the H-1B extension while my NIW 140 petition is in pending.
EricS said:
It sounds very unfair and illegal. Are you sure this is legal and correct? I just can't believe that. That shouldn't be right. No justice at all??? So, for example, if I don't get along with my boss, then I'd better leave the employer? Canceling my existing h1 is i think a violation of the federal law. That's discriminatory. don't you agree?
I agree this is not fair, but, I am pretty sure that the H1B is employer's petition and they can cancel it at any time. Not that too many employers do that, but they can. The most they would have to do is to give you return ticket to your home country. It is legal. But that is not all, you also have a choice, you can transfer your H1 to any other employer who is willing to employ you. So it would be unfair (and illegal? hmmm... may be not) if they cancel your H1 and you have to go out of country, but as you also have a choice to transfer H1, it makes it kind of both ways.duhily said:
Don't worry about your H1 extension, talk to your HR people and they will do it. If they are not willing, then you do not have any choice but to leave that employer. I would also suggest you to make sure that you are eligible for 7th year extension. Read the FAQs and stick thread in this forum for more info. If your 140 gets approved before your H1 extension is approved, you can ask for 3 year extension if you are at that time not able to file 485 due to retrogression.
Best of luck!
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I do not know how you come up with the idea that cancelling H1 is violation of federal law. H1 is not yours and that is why employer must pay the expense of H1. And just FYI, if your I140 was not on NIW, it is again employer's petition and they can revoke it any time.duhily said:
You know, working in foreign country is tough thing.
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GotPR? said:I do not know how you come up with the idea that cancelling H1 is violation of federal law. H1 is not yours and that is why employer must pay the expense of H1. And just FYI, if your I140 was not on NIW, it is again employer's petition and they can revoke it any time.
You know, working in foreign country is tough thing.
I'm working at one of the State Universities and have a contract yearly. I don't think univ would cancel my h1 visa and revoke the contract signed. That's risky for university to do that. They may get sued against discrimination. They may not renew the contract, but it's also risky without compelling reasons.
My I-140 is based on NIW and employer did not spend a penny on that petition. In addition, I also paid H -1b extention fee (about $200) 2.5 years ago when filing.
EricS said:
Of course, I can talk to Legal Council (HR does not deal with immigration at our university) about it. But, I doubt it.
I'm appealing the denial decision of my NIW (NSC) to AAO and will have it filed at the end of this month. AAO processing time is about 6 months, I was told. I was going to file H1b extension bassed on 140 in pending. FYI, I had a 140/485 concurrent filing in Jan. 2005 and both were denied in Jan 2006. But AAO may give their decision earlier than October this year. If they deny before or after Oct. 2006 (H visa expiration date), do I have to leave the country? I think I'm in deep trouble.
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Do you know that MTR/appeal need to filed within 30 (or 33) days of denial? As you say your 140 was denied in January, you have already crossed that time limit. Read the denial letter and it should say that.duhily said:
I agree with you, yes, you are in deep trouble regarding your H1 and GC. There are still some wayouts like filing H1 extension based on pre-approved LC etc., but as you are with a Univ. and probably exempt from H1 quota, you can not file H1 ext with any employer. So options are limited. You need some serious help from an experienced immigration attorney.
Regarding H1 ext., if it is approved based on pending 140, it still remains valid even if that 140 is subsequently denied.
..... and James, if you don't mind, I would like to give you a suggestion. For last couple of months, people are repeatedly telling you that you need to talk to an experienced attorney, I think it is time you do so.
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EricS said:
Erics,
I accepted the suggestion from this forum and hired the attorney and since Jan. I've been working with the lawyer.
I don't know how and why I have a 60 days extension of NIW appeal to AAO. That was done by my immigration attorney and he said that the deadline given to submit the brief to AAO is April 3rd.
Yes, that is possible. Some times when you do not have all the supporting docs ready for the appeal, you can file the appeal to AAO and in there state that more documents (or brief) to follow. This way you get some time to collect the documents and send those later, but appeal itself must be filed within 30 days and as you said, your lawyer already filed that.duhily said:
Hope everything turns out good for you. Best of luck!