My employer forgot to sign the I-129 form on my H1B extension, and the petition was rejected by USCIS. By the time my petition was refiled, my I-94 had already expired, and I accumulated about 2 weeks of unlawful presence. I have a Canadian visa, so I left for Canada. The H1B extension has since been approved. Is it true I have to fly back to my home country (India) to apply for the new H1B visa stamp?

Answer

Under 222(g), if a person accumulates any unlawful presence and then departs the U.S., the existing visa becomes void. Further, the individual generally is required to apply for a new nonimmigrant visa in the country of nationality. If the foreign national applies in a country other than the country of her/his nationality, the consular officer typically has the discretion to still issue the visa based on “extraordinary circumstances.”

In practice, consular officers seem to interpret “extraordinary circumstances” pretty broadly. In a situation like this, it may be worth applying for the visa in Canada, rather than flying all the way back to India for the visa appointment. (28.Apr.2022)

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