Unauthorized Employment on F1 Visa but H1B approved with i797B

dilemma_UW

New Member
Here's my situation and I am seeking some help desperately.
  1. My H1B visa petition was picked in this year's lottery and I was issued a RFE for maintenance of status (due to day 1 CPT) after my initial application submission. My lawyers submitted the RFE response ( & requested COS) and I got my H1B visa approval. However, instead of COS (I797A) I was issued I797B for consular processing along with a separate letter which explained the decision.
  2. USCIS noticed 2 pay periods in my pay stubs (they had asked for stubs as part of RFE) where I was paid when I did not have work authorization. They are indicating that I did not maintain the F1 status by engaging in unauthorized employment.
    • Period 1 - 24 days' This was a GAP between my first day1 CPT degree and second degree.
      • I did not work in these 24 days but there was an administrative error (not marking me on absence of leave) and the company's HR system paid me the salary which I honestly did not notice.
    • Period 2 - 5 days. This was again a GAP between second Day 1 CPT masters and my PhD program.
      • Here, I was under the impression that my PhD program CPT would be authorized without a GAP ( and I did work in this period for 3 days out of the 5 calendar days in question.
Help Needed:

Can I successfully seek approval with consular processing in this case? My company lawyers think I can get the visa stamped, however, I have to say YES on the visa violation question and explain the situation during an interview. They are not willing (at least at this point) to allow me to revert the payments made to me in error or cut it from a future salary and issue me a letter explaining the administrative error.
 
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