H1B Strange Stamping Issue - PLEASE HELP

H

HetalS

Registered Users (C)
My 6 years of h1b expired on 30th Sep, 2004.
I have been staying in Canada since then.
Using the 1 year gap rule, my company applied for a fresh H1B via premium processing.
This was approved and I received an I-797 valid from Oct 1, 2005.
I went for my visa stamp in Toronto yesterday. Today they denied my stamp with a printout stating

“A non-immigrant who has spent the maximum allowable period of stay in the United States in H and/or L status, the alien may not be issued a visa or be readmitted to the United States under the H or L classification, nor may a new petition, extension, or change of status be approved for that alien under INA 101(a)(15)(H) or (L), unless the alien has resided and been physically present outside the United States.”

Basically stating that their interpretation of the sentence is that I cannot even file for a new H1B prior to 1 year gap from the 6 yrs expiry.

Additionally, they also kept my I-797.

PLEASE HELP!!!!
What should I do now?!??
 
msdn2006: Thanks a bunch for the prompt response!!
I have already contacted my company attorney.
Also, I have learnt from experience that it is better to have as much information I can myself rather than completely depend on the attorney. There are times I would have liked an alternate opinion but my company is not willing to consider alternate attorneys.
Consequently, I was looking for any information I could find to educate myself on the issue.
Can u direct me to any links or any other indicators you might know?!?

thx,
 
ooops yes!! guess i am quite tense...
Correction:
Previous H1B expired on Sep 30, 2003
Got an approved I-797 valid from Oct 1st, 2004.
Hope it makes more sense now....

unitednations:
Could not find the exact link but here is one in the forum.
http://www.immigrationportal.com/archive/index.php/t-125932.html
You can actually go in for a visa stamp upto 6 months prior to the visa validity date.
Additionally, you can actually enter USA upto 10 days prior to the visa being valid.

Thanks for all your help,
 
Thanks unitednations!!
I am an Indian Citizen.
Read the link you sent. So...does this mean that the consulate is right in stating that I am not eligible even to apply for a new visa prior to 365 days expiry of my previous visa?
If that is the case, how did my I-797 get approved?

thx,

p.s I am surprised no one else ran into this issue since the 365 days gap was the only window available before the 7th yr extention rule came into being.
 
unitednations said:
This is new ground. I haven't seen any other posts such as this.
Click to expand...
Yes, it does seem to be a unique situation.
Checked all over the internet yesterday and could not find any similar post or precedence.

unitednations said:
I don't think you need to worry since you can still using premium processing and get it approved within a week as time gets closer to October.
Click to expand...
Is there any possibility of the quota running out by October?!?

unitednations said:
Ginnu, is an expert on this issue and he should be able to respond to you tonight.
Click to expand...
Ginnu: Do you know of any precedence or anything you have heard of?!? Any inputs would be appreciated.

unitednations said:
BTW, while you were out for a year in Canada were you working for the same company in Canada. If you were then maybe you can come on L-1/
Click to expand...

My lawyer did not recommend an L-1. Also, according to what I understood, I had to be physically out of USA for 1 year for the new 6 yrs to kick in.

unitednations: Thanks for your responses. I do appreciate the inputs...

thx,
 
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