Urgent!! Is my lawyer right?

V

vnay

New Member
I current H1B expires on Dec 11th.

Here's my plan - I want to apply for extension (4th yr) now, go for vacation and come back just before the visa expires (Dec 7th).

But my lawyer says that if I leave the country while my H1 extension is pending then my application is assumed to be withdrawn or void. This may mean that I may have to reapply for H1B.

Is that true?
 
I current H1B expires on Dec 11th.

Here's my plan - I want to apply for extension (4th yr) now, go for vacation and come back just before the visa expires (Dec 7th).
-- Try to be back 10 days advance because if your extension has RFE due to any reason you can have the time to file new H1 extension petition or reply RFE before your I-94 expire because you will get I-94 till Dec 11 only
But my lawyer says that if I leave the country while my H1 extension is pending then my application is assumed to be withdrawn or void. This may mean that I may have to reapply for H1B.

Is that true?
----- Not True, only change of status is abandoned if you leave US, extension of status is not abandoned “ the application for a change of nonimmigrant status *would
be*
abandoned, and an application for an extension of nonimmigrant status
*would
not be* abandoned, and here is the basis for that, the so-called "Cook
memo":
http://www.immigration.gov/graphics/lawsregs/handbook/TravPub.pdf

Read the last 3 lines of this DOS MEMO and attachment 3rd page

"Current Service policy does not preclude an alien from traveling
outside of
the United States while a request for an extension of temporary stay is
pending with the Service."

---Change the attorney; he seems to know only how to type forms
 
And if you get H1 extension approved while you are out of US get the approval notice to be mailed by your employer to you in India, show the valid visa in PP that is valid till December and your H1 extension approval to POE Inspector he will issue you new I-94 till the validity of your H1 approval. (You can also get H1 Visa stamped in India based on H1 extension approval if you wish, if it is Chennai consulate avoid it)
If you reach US before your H1 extension is approved then you may get new I-94 extended and attached with approval
 
Thanks a lot Ginnu. The information was very helpful.

I had another question though -
If I were to apply for extension now (in August) and plan to leave for vacation in November (coming back on Dec 7th). Does that give me enough time to answer (or reapply) any RFE due? In other words, is it safe to assume that if there is no RFE due until Nov first week, I will be OK later?
Thanks.
 
I had another question though -
If I were to apply for extension now (in August) and plan to leave for vacation in November (coming back on Dec 7th). Does that give me enough time to answer (or reapply) any RFE due? In other words, is it safe to assume that if there is no RFE due until Nov first week, I will be OK later?
--- It depends on your service center many are taking 6-8 months for H1 extension, I don’t know when they will look at file and may generate RFE, if no RFE you will be OK, all depends on the correct petition, your past status, employer status no prior H1 related violations, your past status getting minimum salary as on LCA, recent pay stubs, if you have every document and petition is prepared correctly I don’t see any reason for RFE but who knows about BCIS?
Or go for premium processing you will get the approval extension in 15-25 days, when you are in US
 
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