After denial of H1B extension (I-94 already expired), employer proposes to file a new H1B. Is stay in USA legal until a decision is made on the new H1B? What are my options here? Is it better to file the new H1B through another company?


Generally, foreign nationals are legally present if there is a properly filed request to extend or change status. Properly and timely filed means that the case is filed while the person is in status. Filing after a person is out of status would not usually be enough to keep a person lawfully in the U.S. It is possible to file for consular processing. However, it is very important to track the 180 days of unlawful presence so there will not be a 3 or 10 year bar to returning after departure. A consultation would help to determine if the denials are tied to a problem with the company, or if it is an issue with the strategy that can be fixed. (31.Mar.2014)

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