Is it worth appealing if H1b is rejected?

USA H1B Visa
1

Dear Saurabh,

Have seen some of your replies. You are a ray of hope.

My son has done his MBA in the US. Presently his Finance Company has received RFE on the h1b petition? It is almost 50 days now since the reply was sent to USCIS.

Is it worth asking my son to ask his Company to appeal the verdict, if it is negative?

Please help with your vast knowledge.

Worried Parent in India

2

From your question, it seems your son’s application is in REF Response Review stage and not yet rejected. But the question says it is rejected.

If it is in RFE response review, wait for few more days and then ask your son’s company to open a service request to check the status.

There is no question of appealing until H1B petition is rejected.

3

allendsup,
Many thanks for your prompt reply. I never expected such a quick reply. You are right. Presently it is in RFE Status.
I was just wondering if God forbid, it is rejected, then does it make sense to appeal against the Decision? What are the chances of them overturning their own verdict.
Thanks again and God Bless.

4

That depends on the denial reason. Consult with an immigration lawyer if it gets rejected.

Do not get so dis-heartened. It is just a RFE. Most of the RFE’s gets approved.

What did USCIS ask in RFE?

5

allendsup,
You are so positive. I wish I could be like that. But you know how parents are!
The RFE wanted justification that the Post of Financial Analyst, requires such high qualification (B.E. and M.B.A). Also, competitor’s requirements for same Post etc.
You said to consult an immigration lawyer, but the present lawyer is on behalf of the Company. I thought you cannot choose your Lawyer in case of H1B Visa.
You really have been inspirational. Hope Christmas brings us good news.
Regards.

6

allendsup123,

My son got his decision y/day (12/12/12). It ws a negative decision.

  1. How long can he stay in the US after denial?
  2. Is it worthwhile for his Company to appeal? (Company is willing to do so)
  3. Can he continue working during the appeal to the AAO?
  4. How long does the appeal take?

Looking forward to your Answers please.
Regards

7
  1. I assume he was on F-1/OPT at the time of applying for H-1. He can continue to stay until his OPT validity date. Then he has 60 days to leave US (called grace period).
  2. They can appeal but unless they show something substantial, USCIS will not overturn their previous decision. Does the employer has information which can prove USCIS was wrong in their decision? Submitting same information again will not help much.
  3. AAO doesn’t provide work authorization
  4. It can take few to several months. At times, applying in next fiscal year is a faster route than waiting for decision on the appeal.
8

Saurabh,
How can I ever Thank You, for all your guidance? The Blog was a tremendous help. Have passed on your advice to my Son and asked him to act accordingly.
I shall always be indebted to you and allendsup.

Regards.

9

Saurabh,

Maybe for one last time, I shall bother you.

My son’s Employer is willing to provide him with a contract job in India.
The Employer has never done this before, but is willing to do it.
He has asked my son to find out about this from the Net. Would you know of any sites on the Net or any Lawyer (Indian preferred) based in Chicago that he can contact.

He has to leave the Country as soon as possible, so if you can reply urgently it would be a great help. You have already been a source of inspiration, but you are well versed with the rules.

Regards,
Brian

10

I don’t know any lawyers who I can recommend to you. If the employer wants your son to continue working from India, it should not be an issue. He can leave US and work in India and they can pay him salary in India after deducting taxes (they may have to set-up something to be able to deduct taxes in India). If they want to continue to pay the salary in USD, then that is also possible. They will have to deduct the taxes and he will be considered as a non-resident alien for tax purpose.

Later, they can file the H-1 petition for him and he can travel to US after getting the petition approved and visa stamped.

11

Saurabh,

You have been extremely helpful with all your advice. I never expected so much help. May God Bless You. Merry Christmas and a Happy New Year - 2013.