Has anyone faced this scenario before?

USA H1B Visa
#1

Hello All, I am on H-1B from October 1st, 2015. I am working for my current employer from Nov 2020. While filling for my H-1B transfer and extension, my H-1B got approved until Sept 20th, 2023. I got my Visa stamping done until Sept 20th, 2023 as well. Last week my employer reached out to me saying that USCIS approved my H-1B beyond 6 years by mistake. My recapturing time ends by this March-end. My Green card process started in September 2021. As per my company’s attorneys, I can legally stay until Sept 2023.

Has anyone encountered this scenario before and what steps should I take to prevent any problems in future?

#2

You can get 1 year extension under AC21 if your PERM is not approved but is pending for more than a 1year or is approved at the time of H1B maxout.
As your PERM seems filed after Sep 2021, you will need to leave the country before your H1B maxout.
I agree with your employer more than with your immigration lawyer. Even if USCIS approved beyond 6 years, if you dont have a pending PERM for more than 365 days or an approved PERM or I-140, unfortunately you cant stay in the US and continue with your job. If you do that, you may get into trouble later on even if it was USCIS fault.
You can come back after your PERM is approved by filing one year extension and for that I would suggest you leave before few days are left on your H1B maxout time.
If needed , consult another lawyer to take a second opinion.

#3

Hi Kalpesh,

Thank you for your reply. Is there a chance where USCIS can revoke my H-1B because I overstayed. Do you know if we can appeal to USCIS about this decision?

#4

You can appeal using form I-290B however you can’t win if you broke the law.