We at Murthy Immigration Services are happy to report the successful outcome in removing a finding of three year inadmissibility and obtaining a H1-B visa, without a waiver at U.S. Consulate in India. The consulate had found the applicant inadmissible for a period of three-years under provision of INA § 212(a)(9)(B)(i)(I) – unlawful presence of over 180 days and lesser than a year – on one of the applicant’s previous visits to the U.S. in 2011. At the H1-B visa interview, the interviewing officer had informed the applicant that a waiver of inadmissibility under INA § 212(d)(3)(a) was needed and recommended by the consulate. Further, the applicant was advised to wait until Department of Homeland Security adjudicates the Waiver application.
Background
In 2011, the applicant’s prior employer had applied for extension of the applicant’s H1-B status one working day after expiry of his H1-B I-94 (since the I-94 expired on Friday, it reached the United States Citizenship and Immigration Services (USCIS) on the following Monday which is two calendar days after expiry of I-94). Law requires that an application to change or extend one’s status should be filed on or before expiry of one’s valid status in the U.S. The employer assured that everything was fine and that they had successfully addressed this issue in response to a Request for Further Evidence (RFE) from the USCIS. However, the request to extend the H1-B status was denied by the USCIS. In spite of repeated requests, the applicant was never shared a copy of the response to the RFE or the denial notice. Following denial of the extension, the applicant left the U.S. and was issued a U.S. visa at the U.S. mission in Toronto and following his re-entry into the U.S., the USCIS had approved applications to extend his H1-B status on more than one occasion.
Basis for Finding of Inadmissibility
The U.S. consulate in India noticed the fact that the request to extension of the applicant’s H1-B status was filed after expiry of his H1-B i-94 in 2011. Under these circumstances, the applicant generally starts accruing unlawful presence on the date of expiry of the I-94 except in certain special circumstances. If the finding of the consulate that the request for extension of H1-B status was not filed in a timely manner, then the finding of inadmissibility pursuant to INA § 212(a)(9)(B)(i)(I) was accurate.
Murthy India Helps Remove Inadmissibility Without Waiver
The applicant contacted MISPL after the finding of inadmissibility was made and the request for waiver was being processed. Attorneys at MISPL indicated that the only way to overturn the finding is by reviewing the response to RFE and the denial letter from the USCIS. MISPL recommended the applicant to obtain a copy of response to RFE submitted by his then employer and denial letter from USCIS using provisions under Freedom of Information Act (FOIA).
Once these documents were obtained, attorneys at MISPL reviewed the same and were able to understand that USCIS had used its discretion to entertain the untimely filed request to extend his H1-B status and the H1-B was denied on other grounds and not on account of delay in filing of the request for extension of H1-B status. MISPL sent out consular package and successfully argued that exceptional circumstances existed in this case and that, the applicant started accruing unlawful presence only from the date of denial of H1-B petition and not from the date expiry of i-94 in the present instance. The consulate, after obtaining an advisory opinion from the Department of State, issued H1-B visa to our client, without a Waiver.
Conclusion
Our efforts were successful in obtaining our client’s H1-B visa stamping and the finding of inadmissibility for overstay was removed and the client has since resumed his employment in the United States, pursuant to H1-B status. We appreciate our client’s generosity in sharing this success story for the benefit of our readers.
As our readers are aware, no two cases are same and we at Murthy Immigration Services pay attention to details to decide on legal strategy based on facts involved. Timely consultation with an experienced attorney to understand the complex immigration law would avoid situation like the one above. We also recommend our readers to retain a copy of all their immigration filings and verify their i-94s from time and ensure they are in proper and valid legal status.