H1 Approval Denied HELP!!!!!!!!

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bhartiya_12

Registered Users (C)
My first H1 expire on 15th Jan and my new prospective employer due to carelessness forgot to file for a transfer/extension before that day so applied for a new h1 for me. My H1 approval was denied yesterday. I am here on expired I-94 and out of status. I had hoped to go back to India and get stamping when the approval comes thru.

My wife is here on H1 with the same company from which my H1 was denied.

The company contact said we’ll now asap have to apply for I-140 & 485 so we can get our EAD’s asap and has send my wife list of all docs required. He has an approved labor which he is planning to use for my wife.

What I don’t understand is that how does applying for 140 & 485 help me get in status? I was under the assumption that I cannot join her on the 140/485 application unless I have a valid I-94 which I don’t. So even if they apply for 140/485 it should be only for my wife and it does not help me get into status. I have not asked the company how does applying for 140/485 help me get into status but will try to find out.

Is there some way for me also to join my wife’s green card application without a valid I-94 and if we get our EAD soon I can be in status?

What are my options and how can I get in status immediately?

Is going to India and getting an H4 the only option left for me. Will the consulate in India know that my H1 approval was denied and will it cause problems in getting H4?

I am also studying here so can I try for F1 instead of H4 if H4 is denied? I’m looking for all and any option I can get at this stage.

Please help soon…….

Thanks
 
Why was your H1B not approved? Why did you wait until the last moment to file?

The USCIS has relaxed the zero tolerance policy and you might be able to get to another status like H4 from within the US. Its anyone guess whether your change of status will be approved.
 
New Employer screwed up. He was suposed to file it before 15th and had evrything. Even told me 3 times that he has filed but later we found out that he had not filed but infact send docs to lawyer for it to be filed. Lawyer was on leave for 3 days and was never told about 15th Jan being my last date hence the messup.

How can I apply for H4 while being in US without status? Is it just like H1 application and once it is approved I'll have to go to india and get the stamping? Is it any better if I directly go to India and apply for H4 as they will probably not know that my H1 was denied although BCIS will know it when I apply for H4 approval now.

Also my wife is getting her GC processed and can the employer file for her and my 140/485 saying that she is here on H1 and I am in India so i would not need to give I-94 for me? Once the EAD comes I can apply for Advance parole and go out to get I-94.

I am wondering if this is feasable as I also thought the only option I have is go to India and try h4 but don't understand why the employer never asked me to take that route, instead he said we'll immediately file for GC(140/485) for your wife so I am guessing this is what he plans to do. He has an approved labor he will use for my wife's labor approval process for GC.

Please respond soon.

Thanks
 
It is still unclear whether the entire petition was denied or only that you did not get a new I94 at the bottom even though the H1B was approved. I suspect it is the former. If you had been a few days late in applying, they could have still approved the petition without a new I-94. The fact that the entire petition itself was denied indicates a greater problem than just you being a few days out of status. Find out why the petition was denied, was there a problem with the employer being able to pay the wages? If so, the GC route is likely to fail. Usually they issue an RFE before denying.

When exactly did your new employer file the new H1B petition? Give exact dates.

You can try for a change of status to H4 asap, explaining that you had done everyhting reasonable to comply with the laws etc. This would require a good lawyer.

Not legal advice.
 
The entire petition was denied. I have a finance background with some computer experience and the company is a software company so I am guessing the reason for denial was that my background did not tally with the H1 job profile they submitted the request for.

I will however try to find this out from the employer. If this is the case and its not an issue of the employer not being able to pay or something similar how does it affect the GC process.

I think the h1 was filed 18 ot 19th Jan and denied y'day.

Is the 140/485 route I mentioned not feasible?
 
spoke to the employer. he said they did ask for more info regarding the projects I was supposed to work on. They had filed my case saying I will be working on various consulting projects.

When the details of some of the projects were furnished, the denial came saying this does not prove you can employ this person for 3 years.

I think the reason is primarily my background being finance and until now I had worked in big banks, full time job and now I am switching to consulting to multiple projects and that raised a red flag in the officers mind.

The employer says we can appeal giving more info also but that will have to be done later. the current cricis is somehow to get me in status.

3 Questions

1. Is appeal usually favourable and how long does it generally take?

2. Does this background affect my H4 stamping if I directly go to India for stamping instead of getting H4 approval here and then go for stamping in India?

3. Is the 140/485 route I mentioned not feasible because if it is I want to do that and not have to leave the country to take a chance with my H4 stamping in India.

Thanks
 
If the company found you to be fit for their work, then they should have presented your case well. Looks like they did not prepare your H1B petition well. How do you expect they will prepare your wife's GC petition well?

Filing I140/I485/AP/EAD for your wife and I485/AP/EAD for you with all the supporting documents could take time. The USCIS will do a preliminary scrutiny to ensure that this is not a frivolous application. If they take a while to decide on the case, and then they deny, you would have accumulated unlawful presence (different from being out of status) all that time. Might have to worry about 3 year bar etc.

Going to consulate and getting H4 now should be possible in general. Depends on the consulate though. You have to go to home country or country of last residence, and not Canada or Mexico or elsewhere. If you travel out of the US and your H4 visa stamping is denied, then you may be stuck since you cant file I485 from outside.

Maybe you should hire an attorney. Hope others with more experience will reply. I dont know about the succes of appealing, but it should depend on how you counter the case.
 
I know that I am taking a chance with this company so am looking to find another job also.

But my current situation and question is that since I am currently out of status(no I-94) can the filing I140/I485/AP/EAD for my wife and I485/AP/EAD for me be done now with me being out of status? If so, would it be done showing that I am not here but in India which is why my I-94 would not be attached to the I485 applicaiton? I know my wife would be ok since she has a valid H1 and I-94 but what about me. The only way for me to turn legal as I see it is either go outside and get H4 rfom consulate in India or if possible my GC is also applied alongwith my spouse and showing that I am in India. Then if the initial scrutiny goes thru we should receive EAD's in a few months and then I can be legal and then go out with AP and get valid I-94.

I'm saying this because on one of the 485 docs for the spouse that the employer has send to be completed it says

If in US, I-94#.

Does this mean that a 485 for me can be filed showing that I am not here but in India which is why my I-94 would not be attached to the I485 applicaiton?

Can a 485 be filed for me without a I-94 as my wife's spouse with me being out if status is the key question here.

Of course if after scrutiny they find that our case is no good then we are doomed anyway but at least we have some scope provided the case is presented well.


Thanks
 
I think one must be within US to file I-485. I dont have any experince regarding this. Hope someone else will reply. May be post in the I-485 forum.

So far you were unlawfully present for only 21 days. Thats not too much. A good attorney could set things straight.
 
You will likely be unable to adjust your status since you were illegally present in the US (that is one of the things that 245i did but that is history). If you accumulate more than 180 days of illegal presence, you will be barred from reentry to the US for 3 years (there are ways around this). If you are working for the employer illegally, that will also bar adjustment of status in the US.

Unless you figure out how to address these potential issues, you are probably wasting your time and getting a false sense of security by filing an I-485.
 
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