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H1b Revoked. Gap Of 74 Days. Same Company Filed New Petition (cp). I Worked With I797c ?

Discussion in 'Nonimmigrant Visa Validity' started by Madhur Kumar, Dec 19, 2014.

  1. Madhur Kumar

    Madhur Kumar New Member

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    I have been working for a company since 2010. I have an approved perm and I-140. My I-797 was valid till Nov. 2016

    I work for my company's direct client.

    This summer my project at my client ended. My company filed a petition to withdraw my petition as they refuse to put me on bench. USCIS revoked my H1B petition on July 9 2014.

    My company advised me that if i could find a project within 0-60 days they will be willing to file a new petition with Consulate Processing, as they have does this previously and were successful, but i would have to leave the country before 180 since the days of revocation of my previous petition which in January 9th 2014.

    I found a project opportunity on April 15, 2014. I had multiple interview with the client. I got a Job offer on Sept. 6, 2014. Then i had to compete background and drug tests.

    After everything my client asked me to start on Sept 25, 2014. My company got my purchase order ( SOW) on Sept. 15th and filed for new H-1b petition through consulate processing. I got my receipt on (I-797C) on Sept. 26, 204 and i resumed work on Sept 29th, 2014.

    My company lawyers ( Big risk averse firm based in Illinois) advised me that since it is the petition with the same company then i can start working after the new petition is filed.

    I got the new petition approved ( Approved Dec 15th and i am planning on leaving the country on Dec. 26th, 2014 and go for a stamping.
    -------------------------

    My Question is : Did i work illegally from the time my petition was filed and till the time it was approved ? My Company's lawyers reassured me that it was legal and they have done this before.

    However, i am getting concerned if there advise was valid.

    Please advise.

    Thank you
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    I can't speak to your specific situation because you are represented by counsel and I don't know all of the unique facts and circumstances. Let me, however, offer a few general observations about this kind of situation.

    Generally speaking, when a petition is withdrawn, the H1B beneficiary loses lawful nonimmigrant status immediately. The regulations provide for a ten day grace period to leave the country without incurring unlawful presence. A subsequently approved H1B petition (by anyone) does not act to reinstate the beneficiary into status. This is little different from an H1B that expires before an employer files a new petition to extend it. The approval in that situation does not reinstate the beneficiary. In this situation, the beneficiary is in unlawful presence from ten days after going off payroll until he or she departs the United States.

    A person in this situation needs to be mindful of the issue of unlawful presence and make sure that he or she does not remain in the U.S. for 180 days or more in unlawful presence. Also, the beneficiary will have to disclose the unlawful presence on the nonimmigrant visa application and explain it during the interview. If this was done on the advice of counsel, the beneficiary should document that (copies of emails, etc.) and bring it to the interview.
     

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