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Immigration Issues/USCIS review of withdrawn H1B application

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QUESTION: Hello Ajay,

In Nov 2011, I had received 221g and the Consulate in India was going to send my documents to USCIS for my company to contest and USCIS to reaffirm/revoke my H1B petition.

In May 2012, I withdrew my H1B application since the documents never reached USCIS. I also received USCIS acknowledgement for this in June 2012.

In July 2012, I got my H4 stamped and arrived back in US on H4.

In Jan 2013, I have received two notifications today from USCIS that they have received my H1B documents and will review the case and have notified my petitioner. Exact message copied here.
''On January 15, 2013, USCIS office received this case from the State Department with a request that we review it. We will notify you when we complete our review, or if we need something from you.''

This is very strange but I do not know if this happens often. Is there any way to revive my previous H1B case knowing that I have withdrawn it but probably USCIS is still processing it? What other suggestions do you have for this scenario? It will be a great thing to have my H1B back!

Thank you in advance!

ANSWER: Hi,

As the signature or consent of the beneficiary is not part of the H1B petition filed with the USCIS, normally an H1B petition can be revoked only by the petitioning employer. That is the reason that the H1B petition is still being actively considered by the USCIS. Normally the USCIS does not communicate with the beneficiary; only the employer receives any correspondence from the USCIS. In any event, if the employer does not cooperate with any inquiry, the H1B petition will be denied. However, even if denied, this will not impact your current H4 status. If eventually approved, the H1B status can be activated if you depart the U.S. and enter on unexpired H1B visa stamp, as you are unlikely to be granted change of status from H4 to H1B within the U.S.


---------- FOLLOW-UP ----------

QUESTION: Thank you Ajay. In fact, the petitioning employer had withdrawn the application on my request.

However, since USCIS is actively considering it, I was wondering how long does it generally take them to make a final decision? I received a third online notification today that my case is under initial review now.

Also, in the event that my H1B visa is reaffirmed, would I need to go through visa stamping interview again before re-entering US, or would I just need to get the visa stamped on my passport by sending it through VFS?

Thank you again for your advice!

Answer
Hi,

Your employer apparently did not revoke the H1B petition.

It will take the normal processing time of 2 to 5 months for the USCIS to make a final decision. Any decision or an RFE (request for additional evidence) will be mailed from the USCIS directly to the sponsoring employer, and you will not be privy to the correspondence. In other words, you are totally dependent upon the employer to keep you notified of the actual contents of any correspondence received from the USCIS.

If the H1B petition is approved, and your employer has submitted the original H1B approval notice to you, then you should contact the Consulate again for another appointment for H1B visa stamping.

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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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