First H1B denied and second H1B pending with USCIS - Am i legal to stay in USA?

USA H1B
1

Hi
Come someone please help me out?
I94 expired on AUG 2017, moved to another employer filed new petition on Apr 2018 (end of 240 day period) and continued working with the same client.

first H1B is denied on OCT 2018 while my second petition is still under process.

Based on my Attorneys advice,We withdrawn the second H1 on Feb 25 2019 after recieving couple of RFE’s on this bridge case.

I left the country on Mar 7th 2019 to re apply New H1 after 365 days cool off period in 2020 April.

As per USCIS, My “Unlawful presence” begins on the day of first H1B transfer denial in this case "
based on the above statement i had stayed 120 days counting from OCT 31 2018 to Mar 7 2019 which is less than 180 days stay.

My concern is, Even though the first petition is denied my second H1b is still under process with USCIS. Am i still illegal to stay?

Is it going to effect my Future H1?

Please answer.?

2

You said that that your second H1B was withdrawn by employer/attorney?
Then, how can it be considered pending?

Your ‘unlawful presence’ time will definitely affect all your future applications. You should have NOT stayed in US after your first H1B denial.

3

Thanks for your response Anil.
My second H1 was withdrawn by employer on Feb 25th 2019 after we received NOID, till then i was working.

What i meant earlier,when the first one was rejected on Oct 2018, the second case was still pending.

I was told i could still stay until we get the response on the second one.

4

As per my information, your ‘unlawful presence’ would start from the day your second H1B was withdrawn.

You can check with an attorney to know more.

1 Like
5

Anil,
I was working till end date and i have paychecks to show them the proof that why i overstayed.

Is it still illegal? did i messed up something here?
Am i in trouble now? Just to be in safe i am planning to be out of the country for next 365 days and reapply a new petition again in 2020.

6

This sounds a big relief to me. Thank you.
I talked to multiple attorneys in same matter from, but no one could really give me a proper ans.
Anyways thanks for your response and this is helpful to me.

7

You are welcome. Do not worry.
I think you will be fine if you apply again after 365 days of cool off period.

8

But for everyday the US immigration system sucks !!!
I have Bachelors and Masters degree from USA and my work experience is Legit ,was with the same client for more than 5 years. and never on OPT and CPT etc…but still am out of the country with no reason.

9

I can understand your pain. But, that’s how it is and they are trying to gain politically by rejecting more applications.

10

I am not sure of this, but I have been hearing that Hillary Clinton wants to run again in 2020. If she does run, then Trump 2020 is a sure thing!
I hope Democrats need to do more than bash Trump or hope that the Trump administration destroys the economy and makes working people hurt so badly that they turn to the Democrats out of desperation.
I wish positive and they give chances to us!!! My Fingers crossed.

11

Neither Democrats nor Republicans are going to do anything for legal immigrants.

12

Either way this would lead Red wave and Blue wave down…They should and MUST compete for immigrants to boost their economy.
even my white boss agree this statement :slight_smile:
End of the day they should stand up and say “‘Hey, come to us, we welcome immigrants”
I bet 2 cents on this.

13

Hi Anil,
Following up on the above,
As I overstayed on my visa and assuming that it would be a problem in re entering US again , I am planning to travel on my spouse visa with a new passport changing my last name.
Do you think it would be a problem even though I re enter using H4 dependent visa? do they still have my old visa information and overstay on my records?

14

They have your fingerprints and can identify you with or without your correct last name.

I strongly recommend to not hide your identity as it can have serious consequences if you are caught hiding facts.

15

Thank you Anil.
Sounds like am in trouble.

16

I have reasons to overstay and paychecks to show that I was working til the last min I left as a proof… but still my concern is what if they deport me ?
My wedding is in 2 months and that guy is on H1. I have no idea how this process goes and worried about my entry with him

17

You can talk to an attorney if you are worried and then plan your travel.

The automatic 3 year entry ban is enforced if you have ‘unlawful presence’ of 180 days or more.