H1B Denied Options, File COS to Stay in USA?

H1B denied options. File H1B transfer or H4, F1 COS to stay in US before the denial. H4 stamping in Mexico, then apply H4 EAD. Get F1 OPT or CPT. File again.

Am22tech
  By Am22tech    Updated  2 Mar, 20


H1B denied and looking for options to stay in USA? Read on to find out ways to change status or file another H1B application.

Can I stay in USA after H1B Extension Denial?

You can stay in US after H1b extension denial if your i94 is still valid.

What options do I have after H1B Transfer Denial?

You can file another H1B transfer if the current i94 is still valid. If i94 has expired, you can file another H1B transfer but cannot start working on receipt. You should leave US and wait for approval to come back.

Can I file H4, F1 Change of Status after H1B Denial?

You cannot file change of status application if H1B has already been denied and your i94 has expired.

Is there an H1B 60 day Grace Period After H1B denial?

There is no 60 day grace period after H1B denial.

H1B denial rates have increased in past couple of years for IT consulting companies and the employee does not have many options if the denial comes after i94 has expired.

H1B Transfer Denied Options

Assuming you have joined the new employer on H1B Transfer receipt:

#1 Transfer filed after i94 expiry

If you filed H1B transfer after i94 expiry, then you cannot stay in US after the denial. You must leave USA within 10-15 days after denial. This is because you have lost your legal status in USA and you are now ‘out of status‘. Your Unlawful presence begins from the next day after denial.

You can file a new H1B transfer application but should wait for result outside USA.

Hear Emily Neumann, an immigration attorney talk about options after H1B transfer denial:

#2 Transfer filed before i94 expiry

If you filed H1B transfer before i94 expiry, then you can go back to old employer and work for them if they have not yet withdrawn the H1B.

Your status is still legal as i94 is still valid.

You can also file another transfer application with same or new employer and then start working on receipt.

  1. First step is to go back to H1B status by starting work for old H1B employer.
  2. File H1B transfer while you are back in H1B status.
  3. File H1B application with consular processing and wait outside US if old employer has already withdrawn H1B.

Here is an attorney’s advice for options after H1B transfer denial:



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H1B Amendment Denied

Assuming you have started working as per new job description or new location on H1B Amendment receipt, you can go back to old job location.

If you have filed an H1B extension based on pending H1B Amendment, you can keep working using the pending extension if amendment is denied. Note that USCIS rule says that extension will also be denied in this case. So, it is recommend that you start looking for other options as early as possible.

Example:

You got promoted to Software Engineering manager position and your H1B Amendment is denied based on specialty occupation RFE. You can go back to work as per the roles and terms of earlier approved H1B.

Emily Neumann says that there is no clear guidance from USCIS about options after H1b amendment denial and she treats it same as transfer denial in her practice.



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H1B Extension Denied

If your i94 has not expired on the date of H1B extension denial, you can file another extension and keep working in USA.

You can stay in US because extension is for future time period and your current H1B approval is still valid. Extension denial does not invalidate your current H1B.

If your i94 has expired and extension is denied, you should leave the US within 10-15 days. Your status is “unlawful presence” immediately after the denial.

You can file another extension or transfer to another employer but you should wait for approval outside US.

The same options are re-iterated by Reddy n Neumann attorney office:



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H1B Revoke, Withdrawal by Employer

H1B revocation is done by USCIS and is called NOIR (Notice of Intent to Revoke). An employer cannot revoke an H1B.

An employer can only file a request for H1B withdrawal if you stop working for them. It is important to understand an employee is obligated by USCIS to file the withdrawal once you have left the organization. Employer has no choice.

The NOIR is dangerous and affect your stay in USA. These days, USCIS is issuing notice of intent to revoke to people who got their first lottery selected H1B approval for “in-house” projects.

If a NOIR is finally approved for the first cap subjected H1B, you have no option but to apply again in next H1B lottery season that starts in April. You will also need to leave US immediately.

H1B Job Lay Off

USCIS allows you to stay in US for 60 days if you lose your job. You can search for a new H1B employer within this time and start your payroll on or before 60th day to get back to H1B status.

Some people also plan their exit from company using the 60 day grace period but I do not recommend doing it.

New Lottery H1B Denied

You have no option but to wait for next H1B season that starts in April to apply again. You should work to fix the denial reason before filing again.

Change of Status to H4, F1 Visa

Once way of staying in US is to file H4 Change of status application if your spouse is on H1B visa. You can also file H1B to F1 COS application.

Note that you should file the change of status application before your H1B denial. Off-course, the COS option comes into picture only when your i94 has expired.

You cannot file a COS application if your H1B has already been denied.

Example:

Most of the H1B workers file H4 COS application immediately after the job loss and then keep searching for H1B employer. If they find one within 60 days, they join and then file for H4 COS application withdrawal.

You can also visit Mexico or Canada for quick H4 visa stamping and then apply H4 EAD when you are back in USA to continue your job.

Similarly, you can work using the F1 OPT EAD card.

Day 1 CPT

Although Day 1 CPT is an option to stay in US, I do not recommend it as it has potential to ruin your career if USCIS rules it as fraud later. It is better to leave US and file another H1B or look for other options as mentioned above.


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