Legal Question in Immigration Law in New York

H1B denial - failed to maintain status

I have filed my H1B extension in a timely manner but to a wrong service center and by the time it came back to my HR, it was already after my H1B has expired. But as soon as I got the package, I sent it to the correct service center (at this point, 10 days after the expiration date). The bad part is that I enclosed the blue slip that said this has been sent to the wrong service center and I should forward it to the correct one without making a copy.

Today, my HR told me that I received an approval letter and a denial letter which conflicts each other. When my benefit manager inquired the USCIS, they said that the denial letter overrides the approval letter. In the denial letter it says that I failed to maintain status. Obviously, this was not my intention and it was an accident. I see on the code of federal regulation that there are some exception to this. I have been a law abiding citizen with exceptional employee record. Would I qualify? And what are the chances of cases like this to be overturned and how long would it take for the case to be reviewed? During the reviewing time, am I eligible to work?

Asked on 4/15/09, 12:33 am

3 Answers from Attorneys

Anthony Siliato Meyner and Landis LLP
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Re: H1B denial - failed to maintain status

It is quite possible that you received an approval of the H-1B classification, but a denial of the change of status aspect of the application.

This is not unusual when an application for extension is filed out of time. While there is an exception for filing out of time "due to extraordinary circumstances," you will still be deemed to be out of status while a motion to reconsider or reopen is pending.

Based on the foregoing, it appears that you would be required to depart the U.S. and apply for a new H-1B visa (perhaps in your last country of residence) before you can continue to work in H-1B status.

We have substantial experience with this type of situation and would be happy to provide a consultation addressing the specific facts of your case.

The information contained herein is intended only for educational or informational purposes and is not a substitute for legal advice.

Responding to this inquiry in no way establishes an attorney client relationship; however, I look forward to exploring these issues with you further by way of telephone or in-person consultation.

Anthony F. Siliato, Esq.

MEYNER AND LANDIS LLP

One Gateway Center

Newark, New Jersey 07102

asiliato@meyner.com

www.meyner.com

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4/15/09, 9:37 am
Rachel Baskin Rachel Baskin, Attorney at Law
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Re: H1B denial - failed to maintain status

Based on what you have written, you should show both notices to an attorney. You do not say what the approval notice is for. If USCIS denied the change of status, they may have approved the H-1B extension, but you will have to return home to get a visa in your passport. You cannot work until this is done. Again, before you continue to work for your employer, you should have an attorney review the notices that your employer received from USCIS.

Please note that content of this reply does not constitute legal advice or create an Attorney/Client relationship in the absence of an agreement for legal services/retainer with my office. This is just a place to start in deciding what to ask your lawyer.

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4/15/09, 10:36 am
Antoinette Wooten The Wooten Legal Consulting, PC
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Re: H1B denial - failed to maintain status

First of all, why are you working without the H1-B visa?

You can of course appeal the decision, but the length of time it will take is not known due to the work load of the Immigration Service?

Patricia Martin-Gibbons

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4/20/09, 5:26 pm

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