Return to India - H-1B petition is denied or fired by the employer - has US-born minor kid?

USA
1

If someone’s H-1B petition is denied or fired by the employer and has US-born minor kid.

What are the options available during current US and India border restrictions considering Coronavirus outbreak?

  1. How long the primary applicant and family can stay in the United States, given current circumstances?
  2. Can family go back to India, say after 1 week or 10 days?
  3. Can US-born minor (OCI) accompany parents back to India?
  4. If minor US-citizen kid can’t go to India and reject H-1B parents have to go back, what can be done in this case?
2

I am sure that you will be allowed to enter India if you have to go given that you (parent) is an Indian citizen.

India has not blocked entry from US for Indian citizens at this time. So, you can go back.

USCIS may or may not consider this as an excuse to stay back in USA.

Note that if you do decide to stay longer than 2 weeks in case of H1B denial, you should collect and keep all the proofs of government notifications that made you stay back. USCIS will only consider the written proofs in future when you file your extensions.

At the time of this writing, USA & Canada OCI holders are allowed in India if they can get a new visa from Indian embassy.

More information:

3

Hi Anil,
What’s your take on Immigration Relief in Emergencies or Unforeseen Circumstances | USCIS.
Can a person apply h1b extension again if h1b denied and I94 already expired . USCIS seems to be allowing it in special condition. Also now India is not allowing any foreign commercial flight from Mar 22nd for 1 week.

4

It is better to talk to your Employer’s attorney and see if they can create a case for you based on special condition.

But, in the end, it all depends on USCIS and they have NOT announced anything specific for visa holders yet.

Lot of Attorneys have requested USCIS to give out some relief but there has been absolutely no announcement yet.

5

As per the link I shared ; it is stating below.

Extensions and Changes of Status

When applying for an extension or change of status due to a special situation that prevented your planned and timely departure, we may take into consideration how the special situation prevented your departure. If you do not apply for the extension or change of status before your authorized period of admission expires, we may excuse the delay if it was due to extraordinary circumstances beyond your control.

6

Im in the same situation. Did you travel back to India? My case is
My H1B extension was applied on 08/12/2019 (normal processing based on approved I140) with i94 expiry was 10/06/2019.
Result status updated to DENIED on 03/20/2020. Now I cant leave the US due to Covid-19 pandemic and No flights allowed into Home Country.

  1. Can I try and file i539 COS to B2 and will it help to make my stay legal?how long before does the decision arrive?
    ii) Can we file H1B extension under nunc tunc pro explaining that I cannot leave country due to extraordinary situation and does it cover stay legally ?
    iii) Can we file MTR for the existing denial as the reasoning for denial can be contested with justification.
    iv) Irrespective of whether we go with any one of the above options, can we file another new H1B Cap Exempt (same role) independently as consular processing without waiting on the decision of above?
7

Hi @madhupriya20

The only option to keep staying in US after a denial and i94 expiry at this time is to file a B2 visa.

USCIS may or may not approve B2 based on current Coronavirus travel issues.

You can file MTR but chances of its approval will depend on the reason for current denial.

Nunc Pro Tunc application is to request approval from past date and is not for emergency situation.

8

No need to file b2 or i 539 if your visa got denied and you can’t leave country. Out of status starts from the date of denial. You have 180 days to leave. You are safe. If you file i 539 ($370+$85) ; you are not going to get decision before you leave. Right now this does look like waste of money. Better try to leave before 180 days from date of denial once the situation calms down.

9

Hi @mkumar

Please do not suggest something that’s not legal.

You are essentially asking them to keep adding unlawful presence time and leave before 180 days just because the automatic entry ban triggers on 181 day mark.

I strongly suggest to file B2 visa so that you have a valid explanation when you file any visa in future.

Simply staying back will not be acceptable.

10

Due to covid-19 , nobody is able to fly back. Which is a legit reason to stay, should be able to defend the case based on that. Filing b2 is also just an option and doesn’t guarantee anything.

11

Depending is possible only if you take any legitimate action like filing for another type of legal visa.

Simply waiting may not help.

12

Employer is not willing to do anything; do you suggest filing on own?

13

Why do you expect Employer to file B2 visa for you? Not sure if you know that B2 is a tourist visa and you have to file it yourself.

14

Thanks for the clarification. Do you have any post related for how to file b2 visa online using I539 change of status scenario.Also what would be the date of “out of status” the denial notice date or the date when the notice was received physically?

15

You are out of status starting the end of i94 or the date of visa denial.

16

11 posts were split to a new topic: H1B amendment approved with past date, i94 already expired