H1 extension filed under Consular processing after layoff- old visa and I94 valid


I was laid off in Jan 2020. Currently in 60 days grace period. Found new employer who is preparing my petition in premium filing. The attorney is saying they have to file the petition in consular processing and not in change of extension as I was laid off - gap in employment.

First question: As my I94 is valid is it required to file in consular? can’t they do in COS.

Secondly if they file under consular I have following questions. The company HR and attorney are very slow in responding back. Please note I have valid H1 Visa stamp until Mar 2021 and I94 till Mar 2021.

  1. Do I need to go to for new Visa stamping process( biometrics and
    interview) to get new stamp and then come back to US


  1. Can I just go and come back to US without Visa stamping process.
    Meaning at port of entry show new approved petition and old
    valid Visa and get I 94 with new validity ( any possible issues at airport and US POE here).

  2. In either or above cases do I need to go my home country - India (for stamping or just come back without stamping ) or I can go to other countries .e.g. Can I go to Canada or Mexico ( I read with valid US Visa can go to Mexico without Mexico Visitor Visa)

Thanks Much,

Hi @Gagan123

You can file H1B as extension of status within 60 day period.

You should be able to use your old H1B visa stamp to return to US.

You can go to any country outside US.

Thanks Anil for prompt reply. My main concern is why my company is filing in consular. They are saying since we don’t have current pay stubs need to file in consular.
I am still in status ( 60 days period) so I planning to push back on lawyer to file as COS as “nunc tuc pronc” because filing in consular is extending my joining time and also going through visa interview will be required.

If I receive I797b with consular notification then is it mandated by USCIS to go to consulate to get Visa even though I have old visa valid? I am really confused on this point. and need help.

Overall I want my company to file for extension of status get I94 attached and start work immediately to avoid all these hassles of travel and visa-I94 in consular processing. Do you suggest pushing back the company to file extension of status.?

Hi @Gagan123

As far as i know, you should be able to return using old H1B visa stamp and newly approved H1B i797.

You can take a second opinion from attorneys that provide free H1B advice too.

It depends on your employer as to how they are comfortable with filing H1B. You can legally file H1B as extension of status within 60 days of lay off.

Thanks Anil for the response. Yeah I am waiting on for them to file the petition and receive the I797b consular notification- what ever it states I will follow that because the company attorney is giving vague answers.

If it states go get I94 I will go out and come back if it states go get new Visa stamp - so be it Sir:-). It all depends on 797b. Its wait for next 3 weeks.

I will share what happens so that everyone benefits if in same situation. Thanks!

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Hi Anil,

Some follow up questions as my petition has moved along. Received RFE on March 30th.

Go to Canada Border instead of Mexico?

I have read your posts regarding I94 extension at Mexico Border. Do they have same facility within CBP office at POE at Canadian border. I live near Detroit have two POE near me about an hour away. I understand I cannot cross the border without Canadian tourist Visa but can I take chance to go POE CBP office and apply for I94 extension- this is after my RFE gets approved petition was filed under consular processing. I don’t want to travel to Mexico in these current Corona Virus times. Flights are not safe and its long flight from Detroit to Mexico or either to Brownsville/Laredo/El Paso.

Is H1B filing with i140 Cap exempt?

Also in case my RFE gets denial I will have to go out of US for sure. Here my question is I have I140 approved PD 2017 and valid Visa stamp till Mar 2021. Should I start looking for new employers who can file another petition within US right away till I wait for RFE decision- will this fall under bridge petition rule? . Or else shall I wait for final decision on RFE and go back to India and then try finding new employers. - Here I have some confusion will my new H1 sponsoring employer ( from India) have to go through lottery or they can use my I140 and anytime file cap exempt petition. Is there waiting period before they can file? Can they file H1 to recapture time left and then file transfer using I140. Also since filing is capexempt can I flyback to US anytime or have to wait till Oct1.


You can visit Canada border instead of Mexico.

Any H1B filing using approved i140 is cap exempt and can be filed anytime during the year. There is no need to wait till Oct to start working.

Thanks for quick response. If I go to CBP office should I get Canadian tourist Visa if they ask to go to Canada and come back I mean when the border restrictions are lifted or any chance they will give new I94 based on approved petition itself.

On I140 cap exempt filing if I find another employer and file for another H1 petition will it be counted under bridge petition as I am still in US and waiting on existing petition to get decision on. Is it better to leave US to reset the status and then file new cap exempt petition.

The process at CBP office is the same as it is in Mexico. CBP office is on US territory. If they ask you to cross the border and come back, then you will need Canadian visitor visa.

Bridge only comes into the picture if your i94 expires and you file a new extension or transfer after expiry.
I do not understand what you mean by ‘reset the status’.

Thanks I will apply for Canadian tourist Visa.
I am out of job for past 65 days but petition is pending with USCIS(in RFE) so I meant if this petition gets denied I will be out of status immediately from that date and then cannot file from another petition within the US- I may be able to file another one now while RFE is pending. Need to go back and file new petition.

Thanks for clarifying the bridge petition I think it does not apply to me as I am not out of status yet. I94 is valid till March 2021.

Hi Anil,

New situation just recapturing situation on above thread. After being laid off on Jan 31st 2020- I found employer A who filed H1 transfer on March 19th. Received RFE on March 31st. But that employer has withdrawn the offer due to Covid issue. They said they will not respond to RFE just let it float till it gets declined around Aug time frame( considering Covid extension timeline to respond to RFE 87 days+60 days). Now I got another employer B who is going to file H1 transfer soon approximately by May end but they want me to join immediately on receipt.

Would joining on receipt be possible- I think EmpB have to file COS transfer to make that happen?
Alternatively they will have to go for consular in which case can’t join on receipt and wait for H1 transfer to be approved which without premium is not going to happen soon( 4-6 months) . Ultimately job offer will be withdrawn no one is going to wait till 6 months.

Is there way employer B can file transfer in COS considering the situation that I am not out of status based on H1 petition filed by A. Worst case USCIS may issue RFE and ask to file in consular or give consular petition approval. My I94 is valid till next year March 2021 and have valid visa stamp till March 2021. At least in this option I can start to work keeping in mind about the risk of RFE or denial some months down the line.

What do you suggest?


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What is your current status?

If H1b, then how are you maintaining it after 60 days?