Appeal USCIS H1B Denial – Stay in US while MTR pending?

Appeal USCIS H1B denial decision within 33 days. Chance of appeal approval is 3%. Unlawful presence counted if appeal denied. Processing time 6-12 months.

Written by Am22tech
  By Am22tech      Updated  15 Oct, 19


Appeal USCIS H1B Extension Denial

You can contest the USCIS H1B denial decision within 33 days of rejection.

The 33 day timer starts on the day USCIS denies your H1B Extension or Amendment or Transfer and not the day your attorney receives the official USCIS denial letter.

Chances of H1B Approval after USCIS Appeal

The chances of H1B approval after appeal are very low. The USCIS Administrative Appeals Office (AAO) appeal success rate is less than 3%.
The AAO appeal can take up-to 6 months.

The appeal process is followed by MTR (Motion to re-open) which again might take 6 months.

It is better to file another H1B or file a court case against USCIS decision to get result faster.

Stay in US while Appeal is pending with USCIS

You can stay in US while your H1B denial appeal is pending but it is a very big risk.

Your time spent in US after the H1B denial is still counted as “Unlawful presence” until the final appeal decision is taken by USCIS.

  • If USCIS approves your H1B after appeal, your time after denial to appeal decision date is counted as legal stay time.
  • If USCIS denies your appeal, all your time spent waiting for USCIS appeal decision is considered “Unlawful presence”. THIS IS VERY BAD for future as you get 3 year US entry ban if you have spent 180 days on “Unlawful presence”.


Source: USCIS

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