Posted by: santoshgiri November 3, 2009
Please Need help H1B reinstate issue
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Dear Nepali2877

Leaving the US within the stipulated time, in your case November 13 is a wise decision to make. This ensures that you do not accumulate unauthorized period of stay in the US which can result in a 3 year ban to enter the US, if you stay upto 180 days and 10 years ban if you stay more than 180 days.

However, an option may still be open for you, if the situation you are in is a result of employer's negligence such as benching, non-pay of which you have a claim of back wage or  any similar situation which was out of your control, and you have been acting in good faith (to name a few exceptions), you may try proceeding with Nunc Pro Tunc Filing of H-1B Extension requesting reinstatement from the date of denial to September 2010 (Your H-1B Validity Period), which basically grants you H-1B status. You also need to demonstrate undue hardship if you were to leave the US at this point. Consequently, this is discretionary and contingent upon USCIS adjudicating officer.

THIS TYPE OF EXTENSION REQUEST IS FILED REQUESTING USCIS'S DISCRETION TO FAVORABLY GRANT A “NUNC PRO TUNC” REINSTATEMENT OF NON IMMIGRANT STATUS UNDER 8 C.F.R. SECTION 214.1[c] (4)

The following grounds have to be met:

       I.      This delay was due to extraordinary circumstances beyond the control of
the applicant or petitioner;



    II.      The alien has not otherwise violated his/her non-immigrant status;



 III.      The alien remains a bona fide nonimmigrant; and



AND



  IV.     
The alien is not the subject of
deportation proceedings under section 242 of the Act (prior to
April 1, 2007)
or removal proceedings under section 240 of the Act.






Another option is to have the employer file for H-1B Quota 2010 or H-1B Extension or Transfer under premium processing for consulate processing with all required documents, including Agreements between petitioner and its clients-end clients, Statement of Work, Purchase Orders, Letters verifying existing relationship with client and the petitioner's control over the employee. This will definitely eliminate any chances of RFE and widen chances of approval. As you already have an existing H-1B Visa stamp, you do not need to get a new stamp.

Good Luck.
Last edited: 03-Nov-09 10:25 PM
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