H1B Denied Options, File COS to Stay in USA?

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

H1B Denied Options

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

Transfer Denied

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

#1 Transfer filed after i94 expiry

If you filed an H1B transfer after the i94 expiry, then you cannot stay in the US after the denial. You must leave the USA within 10-15 days after the denial.

This is because you have lost your legal status in the USA and you are now ‘out of status‘. Your Unlawful presence begins the next day after the 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 an H1B transfer before the i94 expiry, then you can go back to your old employer and work for them if they have not yet withdrawn the H1B.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. The first step is to go back to H1B status by starting work for an old H1B employer.
2. File H1B transfer while you are back in H1B status.
3. File H1B application with consular processing and wait outside the US if the old employer has already withdrawn H1B.

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

H1B Amendment Denied

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

If you have filed an H1B extension based on the pending H1B Amendment, you can keep working using the pending extension if the amendment is denied.

Note that the USCIS rule says that extension will also be denied in this case. So, it is recommended that you start looking for other options as early as possible.

Example:

You got promoted to the 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 the earlier approved H1B.

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

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 the USA.

• You can stay in the US because the extension is for the 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 the 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:

New Lottery H1B Denied

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

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. The employer has no choice.

The NOIR is dangerous and affects your stay in the USA. These days, USCIS is issuing the 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-subject H1B’, you have no option but to apply again in the next H1B lottery season that starts in April. You will also need to leave the US immediately.

Job Lay Off

USCIS allows you to stay in the 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 the 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.

Change of Status to H4, F1 Visa

One way of staying in the US is to file an H4 Change of status application if your spouse is on an 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 the 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 applications immediately after the job loss and then keep searching for an 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 for H4 EAD when you are back in the 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 the US, we do not recommend it as it has the potential to ruin your career if USCIS rules it as fraud later.

It is better to leave the US and file another H1B or look for other options as mentioned above.