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Immigration Issues/H1B Extension when I-94 expired

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Question
Hello!

I've been with my current employer since 2004 and they have applied for my labor cert for my greencard so I'm renewing every year now for my working visa.

For this year, my visa expired last Oct 15, 2010. My employer filed the extension last Oct 6, and was received by USCIS last Oct 7. But during the acceptance stage, they found out that some documents attached had some minor errors, the whole application was returned last Oct 12 and received by my employer last Oct 18. The employer and lawyer already resend the application back to USCIS last Oct 20.

My question is, would may application still be considered "timely filed" even though it was rejected last Oct 12? Since upon reading the statement form USCIS website: Rejected applications or petitions do not retain their filing date. What are the chances that my petition will be approved? Also can I still continue working for my current employer while waiting for the USCIS decision?

Would really appreciate it this question would remain private.

Thank you for your help.

Answer
Hi,

It is best to suspend your employment (remove yourself from payroll), and have your employer convert the existing petition to premium processing. The USCIS will make a decision within 15 days of receiving the premium processing request. If the petition approval states that you have been granted extension of status, you can be put back on the payroll immediately. If the petition is approved without extension of status, you will need to apply for H1B visa stamp at a U.S. Consulate in your home country and then enter the U.S., at which point you will be reinstated in H1B status.

Incidentally, from the scenario you have described the odds are in your favor that the USCIS will grant extension of status, but you should still be removed  from the payroll temporarily.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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