H1-B filed late by the employer

S

sheilaucsd

Registered Users (C)
I filed application for H1-B with my employer 1 month before my F-1 optional practical training expired. This company lost track of my file after it obtained approval for the labor condition application, and thought it had filed with INS although in fact it did not. I inquired several times but was errorneously assured that the application had been filed timely. Now 8 months passed and I finally found out that nothing had happened to my file. Technically I run out of status but it is beyond my control. I also have another EAD card for practical training, whose date does not show me as going beyond the 180 limit by now. The company probably will try to explain this big mistake to INS when it submits my application this time. But if INS does not buy this, will I be subject to the 3-year bar? The consulate back in my home country is not a pleasant place to go, anybody has any suggestion on what to do?

Thank you very much.
 
try to explain it to the INS..

they might consider it as a real mistake as it really was..however they might not ..in which case consider getting a great lawyer to explain your story.
 
You're probably going to need to leave the US to get your visa. It may be possible to request "nunc pro tunc" (literally translated as "now for then") approval with a start date back to the date of expiration of you old EAD. You may have been illegally employed but I didn't quite understand what you meant about your EAD. This could be very tricky. Speak to your attorney but since your I-94 should show a "D/S" as an expiration, you should not be subject to the mandatory 3 year bar. I don't like it though so speak to your attorney in detail. Again, this may not be easy.
 
Re: try to explain it to the INS..

Originally posted by tt tt
they might consider it as a real mistake as it really was..however they might not ..in which case consider getting a great lawyer to explain your story.
Click to expand...

This emplyer recommends that I leave US first and then he files for H1-B. He says by doing this INS will not pay much attention to my case. But I figure INS is able to know my out-of-statu if it wants, so maybe I should stay here until I get the H1-B peition approval. Is this employer's advice feasible? Thanks.
 
Not. Until H1 is pending you dont have to be out of the country, unless employer offers to do premium processing. Then you can quickly leave the country after the approval and get a new stamp and get in. Make employer pay for all the interim period..
 
Jaxen, thank you for your quick reply. I cannot accept pay because I am out-of-status. I am concerned that if my presence will interfere with the H1-B petition.
 
judgement call. you are getting answers from lawyers or from people who have been on status most of the times... Sorry
 
Post your experience

Hi sheilaucsd,

Please post your experience of H1B stamping at your Home Country Consulate.

Would really appreciate it.

Thanks
 
Took about 15 minutes for the interview and not difficult. First ask if I have been to US, how long. Then ask what I will do and why I am qualified. That is all.
 
illegal to accept pay?

Since I did not receive any pay while the company told me that H1-B was being processed, I complained to Dept. of Labor. Dept. of Labor instructed the company to pay back minimum wages while I was out of status and was actualy working for the company. Is it legal to accept this mimum wage, since I did not have work authorization from INS during that time?
 
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