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Help! US visa: H1B-B2-B2ext-H1B

I am wondering if fellow pxers out there have had a similar
experience:

> I was previously on H-1B (COS from F-1 OPT, then visa stamp in Manila in October 2009). I resigned from my H1B job in December 2010.
> After resigning, I changed my status to B2 (approved) and actually traveled in the US. I extended my B2 status in June 2011 and asked for 3 months extension (until Sept 2011).
> In August, I casually sent my resume to two companies. Both offered me a job. I accepted offer of Company A. Declined Company B.
> While my B2 ext was pending, Company A filed for my new H1B.
> In September 2011, my B2 ext was denied with a brief decision "due to pending H1B."
> A few days after denial of my B2 ext, my new H1B was denied (reason: position does not require a bachelor's degree--even if it was the same position as my previous H1B!)
> One day before leaving the US, I received a re-offer from Company B.
> The next day after receiving an offer, I left the U.S. (Sept. 30, 2011 --exactly twelve days after my B2 ext denial. I had no I-94 to surrender when I left since my orig I-94 was submitted with my B-2 ext. I kept my original boarding passes to prove that I departed the U.S.)
> Last month (October 2011) Company B filed a new H-1B for me (consular processing). The new H-1B was approved.

Questions:
1. My H-1B visa stamp from my previous employer (where I resigned in Dec 2010) is still valid until 2012. Can I still use that to re-enter the US with the new I-797 approval from Company B?

2. If not, what should I expect at the US Embassy in Manila when I go for a new H-1b visa stamping?

3. What are the chances that I will get a 221(g) slip?

4. Please share your general comments/suggestions about my situation.

Thank you!

Comments

  • storbo1229storbo1229 PEx Rookie ⭐
    gailpete, thank you for sharing your problem as I am also thinking of doing the same thing (changing from H1B to B2). did you consult a lawyer before doing change of status? I assume you did it all by yourself. i watched a segment in balitang america, yung kay Tancinco na before H1B is applied, kelangan approve na ang B2 COS or extension mo, alanganin kase ang concurrent filing or something like that. yan tuloy yung sayo, nagchain reaction. im sorry ha pero what we're you thinking to apply B2 ext, very risky kaya yun. nung naaprove sana yung COS to B2 mo, nag-apply ka na kaagad.

    regarding your questions, I have no idea. it is better to consult a lawyer before you get in deeper trouble. I don't think you can use your old H1B visa anymore kase na-out of status ka nung nadeny yung B2 extension mo, pero inde ka naman barred to enter US yet for 3 years kase less than 6 months ka naman out of status. goodluck!
    gailpete wrote: »
    I am wondering if fellow pxers out there have had a similar
    experience:

    > I was previously on H-1B (COS from F-1 OPT, then visa stamp in Manila in October 2009). I resigned from my H1B job in December 2010.
    > After resigning, I changed my status to B2 (approved) and actually traveled in the US. I extended my B2 status in June 2011 and asked for 3 months extension (until Sept 2011).
    > In August, I casually sent my resume to two companies. Both offered me a job. I accepted offer of Company A. Declined Company B.
    > While my B2 ext was pending, Company A filed for my new H1B.
    > In September 2011, my B2 ext was denied with a brief decision "due to pending H1B."
    > A few days after denial of my B2 ext, my new H1B was denied (reason: position does not require a bachelor's degree--even if it was the same position as my previous H1B!)
    > One day before leaving the US, I received a re-offer from Company B.
    > The next day after receiving an offer, I left the U.S. (Sept. 30, 2011 --exactly twelve days after my B2 ext denial. I had no I-94 to surrender when I left since my orig I-94 was submitted with my B-2 ext. I kept my original boarding passes to prove that I departed the U.S.)
    > Last month (October 2011) Company B filed a new H-1B for me (consular processing). The new H-1B was approved.

    Questions:
    1. My H-1B visa stamp from my previous employer (where I resigned in Dec 2010) is still valid until 2012. Can I still use that to re-enter the US with the new I-797 approval from Company B?

    2. If not, what should I expect at the US Embassy in Manila when I go for a new H-1b visa stamping?

    3. What are the chances that I will get a 221(g) slip?

    4. Please share your general comments/suggestions about my situation.

    Thank you!
  • JAJA PEx Rookie ⭐
    gailpete wrote: »
    I am wondering if fellow pxers out there have had a similar experience:

    > I was previously on H-1B (COS from F-1 OPT, then visa stamp in Manila in October 2009). I resigned from my H1B job in December 2010.
    > After resigning, I changed my status to B2 (approved) and actually traveled in the US. I extended my B2 status in June 2011 and asked for 3 months extension (until Sept 2011).
    > In August, I casually sent my resume to two companies. Both offered me a job. I accepted offer of Company A. Declined Company B.
    > While my B2 ext was pending, Company A filed for my new H1B.
    > In September 2011, my B2 ext was denied with a brief decision "due to pending H1B."
    > A few days after denial of my B2 ext, my new H1B was denied (reason: position does not require a bachelor's degree--even if it was the same position as my previous H1B!)
    > One day before leaving the US, I received a re-offer from Company B.
    > The next day after receiving an offer, I left the U.S. (Sept. 30, 2011 --exactly twelve days after my B2 ext denial. I had no I-94 to surrender when I left since my orig I-94 was submitted with my B-2 ext. I kept my original boarding passes to prove that I departed the U.S.)
    > Last month (October 2011) Company B filed a new H-1B for me (consular processing). The new H-1B was approved.

    You have a very interesting and scholarly writing style, very much in the manner of an attorney with the amount of specific detail and the frequent use of correct terminology. Were advanced writing skills part of your H-1B position?

    As you found out from the extension denial, CIS stopped allowing people to use B-2 status as a "bridge" between H-1Bs, or F-1 to H1B several years ago. Maybe 2009?

    I'll give an opinion on some of your questions.
    gailpete wrote: »
    Questions:
    1. My H-1B visa stamp from my previous employer (where I resigned in Dec 2010) is still valid until 2012. Can I still use that to re-enter the US with the new I-797 approval from Company B?

    First, if you ever worked AT ALL after leaving your H-1B job, your old H-1B visa is void.

    If no unauthorized work, then often it is possible to use an old H-1B visa for a new employer. It depends on a particular section of law (8 USC 222(g)) that automatically voids a visa if you remained in the US "beyond the period of stay authorized by the Attorney General". In your specific case, it looks as if there was less then 120 days between when your B-2 expired and when you left the United States. If that is correct, you can argue that your visa is not void, but for reasons that are too long to discuss here, it may be a very hard argument to make successfully, and not turning in an I-94 at departure makes it even more difficult.
    gailpete wrote: »
    2. If not, what should I expect at the US Embassy in Manila when I go for a new H-1b visa stamping?

    Your old visa will be cancelled if the officer believes 222(g) applies to you. I would expect many, many questions at the embassy about your B-2 requests and to determine how long you were out of status on your previous trip. Questions such as: Why did you leave your H-1B job? How long a gap between leaving your job and filing for COS to B-2? How did you support yourself? What reason did you give for needing the first B-2? The extension?
    gailpete wrote: »
    3. What are the chances that I will get a 221(g) slip?

    High. For you or anyone right now.

    Whatever you try, be sure you are prepared to document every date and request you made.

    Good luck!
  • Storbo and JA, thank you for your replies!

    JA, you're pretty intuitive. My previous job, as also the new one, involve lots and lots of writing.

    I voluntarily resigned last year with three weeks notice. Honestly, I was burned out. I was ready for a change and was not averse to the prospect of going home. I threw all caution to the wind, knowing fully well the consequences. But I was careful and filed my B2 BEFORE my last day of employment.

    I have already applied for B2 extension (filed in June) prior to interviewing and receiving job offers. I think my B2 ext was approvable, but the sudden pending H-1B (filed in August) screwed it up. My B2 ext application included photos, receipts from my travels in the U.S. I was on a vacation and getting a job really was something of an afterthought.

    I originally thought that I could still use my old H-1B visa to re-enter the U.S., but my new employer said that I should go for a new H1B stamping (no explanation on why they want me to do so.) I suppose both options have risks anyway:
    1) Use old visa and be turned away at the port of entry (which would mean I have to get a new visa anyway);
    2) Go to the Embassy for a new visa stamping and be grilled on B2-to-H1B intent and overstay (12 days) in the U.S.

    I even thought of filing a Motion to Reconsider the B2ext denial. (Even if I would only be 'appealing' about 2 weeks. In my B2ext, I only asked until September 30, so I was about to leave the US anyway. I found out about the B2ext denial on Sept. 19. I found out about H1 denial on Sept. 23. I left the US on Sept. 30.) But the new job offer came the day before my flight back to Manila. I decided not to pursue the MR as I was afraid having a pending MR would jeopardize the new H-1B.

    I am hoping to get a consul who is fair and who would hear me out. From personal experience and stories I've heard, visa officers seem to have their minds made up even before an applicant says his/her first word, or worse, even before an applicant steps up to the counter.

    I would appreciate any other tips/suggestions/immigration knowledge you may have regarding my situation. I will keep the board posted so everyone else considering an H-1B--B2--B2ext (denied)--H-1B (denied)--H1B (approved) process would be forewarned or would at least not feel so alone.
  • JA,
    Sorry I forgot to answer some of your questions in my already lengthy post above.

    I filed my initial B2 days before my last day of H1B employment. I filed my B2ext days before my initial B2 expired. My H1B (which was denied) was filed over 2 months after I filed my B2 ext. My subsequent H1B (approved) was filed and approved mid October, when I was already in Manila.

    My initial B2 and B2 ext. were for tourism purposes. I supported myself through my savings. I have since depleted said savings. I did not work, whether paid or not after I resigned from my H1B job.
  • JAJA PEx Rookie ⭐
    It sounds like you made all the right decisions, especially with not appealing the B-2 denial. Since you were kind enough to share your details with the group, I'll reciprocate and expand my comments, although I'm sure you have already considered most of what I say.

    The 12-day overstay should only be a minor issue with the consul - much less time then most take to leave after being denied, and not nearly enough time to trigger any penalty bars for Unlawful Presence. With even a marginally decent consul, your communication skills and sincerity will give you a reasonable chance of being issued a new H-1B visa.

    Consuls don't like to see a lot of papers, but sometimes it takes many documents to explain complex scenarios. Organize your packet in the way that best achieves its purpose - to help the officer understand the case.

    It would be my suggestion that you start with a cover sheet - not a letter - that gives a timeline of events in as few words as possible, followed by the important prior case documents. The cover sheet is the most important. No intro paragraph, no letterhead, no "To whom it may concern", no extra words, just a title ("Timeline"?) and list. If anything is appreciated, if appreciated at all, it is a very succinct list of important dates/events. Seeing a simple list (I would print it on pink paper) on top of a packet invites a quick glance. If an officer believes you are trying to help him, the interview may take on a more positive tenor.

    Behind the cover sheet goes your supporting documents in the same order as the events on the cover sheet. You know the details of your case best, but from what you have posted I would suggest copies of:

    - F-1 to H-1B Change of Status approval.
    - Copy of H-1B visa issued Manila
    - H-1B to F-1 Change of Status approval.
    - Extension of Status application copy.
    - Extension of Status denial.
    - Proof of timely departure.

    Not in the packet, but available if requested:
    - H-1B to B-2 Change of Status application copy.
    - New H-1B approval notice.
    - New H-1B petition with all supplemental evidence.
    -Savings account records showing continued depletion while in US?

    Having copies of the B-2 COS and EOS applications may be important if the consul wishes to see the reasons you gave for additional time in the US.

    The consul will see the record of the denied H-1B petition. This may or may not be an area of concern. It could well be that your simple statement that the petition was denied because the job was not a "specialty occupation" may be sufficient for the consul. If questions become more specific, be ready to explain how the job duties of the new petition are different then the duties on the denied petition.

    This is just my opinion, others may their own suggestions. Good luck with your next visa application!
  • JA, thank you for the detailed reply. I think having a cover sheet is a great idea. You're really good at this immigration stuff!

    I hope I don't find myself in a pickle when I go for my visa interview. I just received my approval packet today and I can't say I'm too happy with the H-1B support letter. (Not that t it matters since the petition got approved anyway.)

    Thank you for warning me about the possibility that the consular officer might ask me how the duties of the new petition differ from those of the denied petition. (If only I could say, "Why don't you ask USCIS? The adjudication seems arbitrary to me!") All my H-1B petitions (3 so far) were for the same position, in the same industry. H1B-A which was approved, had similar job duties as H1B-B, which was denied. H1B-C had a slightly different list of duties (a lot of research instead of writing), which was approved. Both H1B-A and H1B-B made use of my advanced degree. H1B-C did not. To make matters worse, H1B-C only mentioned my degree as Bachelor of Arts. I am surprised the petition got approved without the H1B support letter identifying the specific field of study related to the duties of the proffered position.

    Anyway, some final questions:
    > Can't I use my current H-1B visa stamp to re-enter the US?
    > Am I precluded from doing so because I changed status from H-1B to B2?
    > Won't the consul ask me why I am applying for a new visa despite having an H-1B visa valid until Sept. 2012? If he/she does, how should I respond? (I don't know why I am applying for a new visa tbh. My employer said my old H-1B was withdrawn so it is no longer valid and so they want me to get a visa stamp valid until 2014. I am thinking I am applying for a new visa because of 222(g). But of course, I don't want to open up that can of worms to the consul.)

    Thank you again for your invaluable help!
  • JAJA PEx Rookie ⭐
    Normally a weak supporting letter will not be a problem. The letter is not required and some attorneys only use them when there are issues that might use clarification. Only listed BA? At least CIS was able to see your degree field on the diploma. Be sure to take your copy of the entire filing packet with you - sometimes the consul only has access to portions of the filing. Have a quick explanation ready should you be asked how your specific degree relates to the job duties.

    I was hoping you would not ask ‘why' you can't use your H-1B visa. Explaining the effect of 222(g) can be confusing because its implementation relies on how several other laws have been interpreted. There are also some aspects of the law that are unclear. Because of your multiple Change of Status applications, some pending simultaneously, your case is a little unusual.

    Anyway, I'll give my thoughts on how 222(g) might apply to your case. Remember, of course, I could be completely wrong.

    222(g) says that the visa in your passport is void if you use it to enter, but then stay in the U.S. beyond "a period of stay authorized by the attorney general". Since that same phrase was used by Congress within the statute on Unlawful Presence, CIS and the Dept. of State agreed to apply the Unlawful Presence policies that describe a "period of stay authorized by the Attorney General" to cases involving 222(g).

    The first issue in your case is whether you were ever NOT in a "period of stay authorized by the attorney general".

    If I have the facts correct, your original B-2 expired near the end of June, 2011, and your timely filed B-2 extension of status was denied about 9/18/11. You departed 9/30/11, about 12 days later. Those 12 days , beginning the date the B-2 EOS was denied, constituted 12 days (or slightly less if considering the H-1B denial a few days later) of Unlawful Presence as it was a stay NOT authorized by the A.G. (there is no "grace period" once an application is denied). Since the Unlawful Presence rules apply to 222(g), you overstayed an I-94 and your visa is void. That's the answer you would most likely receive from CBP or a ConOff.

    Anyway, reissuing a visa because of 222(g) is a routine matter at the embassies - arguing the matter with them would just overly-complicate what is often a simple process.

    Now there are a couple of interesting theories bouncing around that would say your visa is still valid, but they are tough arguments to make. The most interesting goes like this: although you were NOT in a period of stay authorized by the AG, you visa is NOT void because the I-94 you overstayed was from the B-2 EOS granted by CIS, not the H-1B entry. I make no assertion as to the validity of this position, I'm just posing an interesting theory.

    As you well know, immigration information on this forum should never be relied upon without verification, whether anonymous or not! ;) But this information might stimulate a good conversation if you ever get a chance to visit with an experienced immigration attorney.
  • JA, thank you for replying to my endless queries. Immigration is intimidating!

    I would not be using my old H-1B visa (which is valid until Sept. 2012) to enter the U.S. I have scheduled an H-1B visa interview and I am hoping to get a visa stamp without being harshly interrogated and without a 221(g). I will steer clear from 222(g) discussion.

    Btw, does the 30-day period given to file a Motion to Reconsider the B-2 denial have any bearing as to at least mitigating my overstay in the U.S.? I am now worried because I might have misunderstood this DS160 question: "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" I think I answered "no." Crap!

    I received the B2 ext denial on Sept. 19; the H-1B denial on Sept. 23; then I left the US on Sept. 30. I asked an attorney about it and she said I have 30 days to file an MR. I did actually prepare an affidavit and had it notarized. On Sept. 29, I received a job offer. Per my understanding, even if I filed the MR, it would have been moot once I departed the US? Was I out of status when my B2 was denied? Or when my H-1B was denied? What do I make of the 30 days that I had to prepare a Motion to Reconsider? Does US immigration law mean I could, if I wanted to, file an MR while I am outside of the US, for as long as it is within 30 days from the denial of my B2 ext application? But if I had already left the US, what is the significance of my MR?

    Anyway, I hope everything goes well in my interview. Sometimes I feel like I just want to give up on this US visa situation. The tail end of my vacation in the US, as well as my vacation here in the Phils. have certainly been very stressful! We'll see what happens. Thanks again for your patience and your input!
  • JAJA PEx Rookie ⭐
    gailpete wrote: »
    JA, thank you for replying to my endless queries. Immigration is intimidating!

    I would not be using my old H-1B visa (which is valid until Sept. 2012) to enter the U.S. I have scheduled an H-1B visa interview and I am hoping to get a visa stamp without being harshly interrogated and without a 221(g). I will steer clear from 222(g) discussion.

    Btw, does the 30-day period given to file a Motion to Reconsider the B-2 denial have any bearing as to at least mitigating my overstay in the U.S.? I am now worried because I might have misunderstood this DS160 question: "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?" I think I answered "no." Crap!

    I received the B2 ext denial on Sept. 19; the H-1B denial on Sept. 23; then I left the US on Sept. 30. I asked an attorney about it and she said I have 30 days to file an MR. I did actually prepare an affidavit and had it notarized. On Sept. 29, I received a job offer. Per my understanding, even if I filed the MR, it would have been moot once I departed the US? Was I out of status when my B2 was denied? Or when my H-1B was denied? What do I make of the 30 days that I had to prepare a Motion to Reconsider? Does US immigration law mean I could, if I wanted to, file an MR while I am outside of the US, for as long as it is within 30 days from the denial of my B2 ext application? But if I had already left the US, what is the significance of my MR?

    Anyway, I hope everything goes well in my interview. Sometimes I feel like I just want to give up on this US visa situation. The tail end of my vacation in the US, as well as my vacation here in the Phils. have certainly been very stressful! We'll see what happens. Thanks again for your patience and your input!

    Oh, boy! Let's see what uninformed thought I can relate here....

    The incorrect answer on the DS160 should not be construed as an attempt to conceal the incident since your cover sheet highlights and addresses the small overstay. However, an early-in-the-interview apology for the mistake on that question may be appropriate.

    The Motion to Reopen/Reconsider would only erase the overstay if it was approved and the underlying Extension of Status was granted. That wasn't going to happen.

    There are a few Motion types that may continue to be processed after departing, but not yours, as you already suspect.

    If a person is not in the United States, they do not have an non-immigrant status, so a person must be in the US if requesting a change or extension of status. For example, if you are working on an H-1B and leave the US for holiday, you are no longer an H-1B until readmitted as an H-1B. So it follows that if you leave the US while a COS or EOS is pending, the application is abandoned because you do not have a status to change or extend! Since you wonder about the effect a MR would have had on your status, since you were trying to reopen a Change of Status, the motion would become moot when you departed since the underlying application was no longer valid.
  • Thanks for the reply JA! Below is my visa interview report.

    I was asked these questions:
    1. What will you do in the US?
    2. What is your salary?
    3. You studied in the US?
    4. What other jobs did you have?
    5. What was your salary in your old job?
    6. What is your salary? (Yep, I was asked this twice.)
    7. Can you show me your contract.
    8. How long have you been working for this company. (I said I haven't yet.)
    9. Is this a new petition? (I said yes.)

    Consul: Your visa is approved. It will be delivered next week.

    I will await delivery of my passport with the new H-1B visa stamp with bated breath. I read the 221(g) thread and saw one post where during the interview the consul approved the visa, but a 221(g) was delivered. I was relieved not to have been interrogated with my rather complicated immigration history.

    I will keep the board posted!
  • storbo1229storbo1229 PEx Rookie ⭐
    hope everything goes well gailpete. just pray you'll receive H1B visa instead of 221g.

    gailpete wrote: »
    Thanks for the reply JA! Below is my visa interview report.

    I was asked these questions:
    1. What will you do in the US?
    2. What is your salary?
    3. You studied in the US?
    4. What other jobs did you have?
    5. What was your salary in your old job?
    6. What is your salary? (Yep, I was asked this twice.)
    7. Can you show me your contract.
    8. How long have you been working for this company. (I said I haven't yet.)
    9. Is this a new petition? (I said yes.)

    Consul: Your visa is approved. It will be delivered next week.

    I will await delivery of my passport with the new H-1B visa stamp with bated breath. I read the 221(g) thread and saw one post where during the interview the consul approved the visa, but a 221(g) was delivered. I was relieved not to have been interrogated with my rather complicated immigration history.

    I will keep the board posted!
  • Thanks storbo! :)
  • Got my passport back with the new H-1B visa stamp (3 business days after my interview!) Yay! :-) I find it interesting that the CO did not cancel my other H-1B stamp (the one valid until Sept. 2012). Now I have two H-1B stamps. I hope it won't be an issue at the POE. Any thoughts as to this new situation?
  • JAJA PEx Rookie ⭐
    gailpete wrote: »
    Got my passport back with the new H-1B visa stamp (3 business days after my interview!) Yay! :-) I find it interesting that the CO did not cancel my other H-1B stamp (the one valid until Sept. 2012). Now I have two H-1B stamps. I hope it won't be an issue at the POE. Any thoughts as to this new situation?

    Congratulations! No problem with the second visa. Just be sure the CBP officer views the correct visa - be sure your I-94 does NOT show the 9/2012 expiration date!
  • JA, thank you, thank you, thank you! I really appreciate your patience and insight on my immigration situation. I'll be sure to keep in mind to hand over the new visa page to the CBP officer and to check that my I-94 reflects the new end date of 10/2014. :-)
  • storbo1229storbo1229 PEx Rookie ⭐
    congrats gailpete! way to go!
    gailpete wrote: »
    JA, thank you, thank you, thank you! I really appreciate your patience and insight on my immigration situation. I'll be sure to keep in mind to hand over the new visa page to the CBP officer and to check that my I-94 reflects the new end date of 10/2014. :-)
  • My final update on this thread. I am back in the U.S. and didn't have any problems at the port of entry. I was just asked if I was still working at my first H-1B company. (I answered no, although my H-1B visa for that company is still valid and was not canceled by the US Embassy in Manila). I was then asked what I do/will be doing at my new job. Just those two questions and nothing else!

    Thank you to everyone who've read my posts, especially to JA and storbo. To others out there undergoing any immigration-related process, I wish you the best of luck. Keep the faith! :)
  • storbo1229storbo1229 PEx Rookie ⭐
    nice! welcome back! saang state ka?
    sure you're very much welcome! uy paki-sagot naman PM ko when you have the time, appreciate it, thanks!
    gailpete wrote: »
    My final update on this thread. I am back in the U.S. and didn't have any problems at the port of entry. I was just asked if I was still working at my first H-1B company. (I answered no, although my H-1B visa for that company is still valid and was not canceled by the US Embassy in Manila). I was then asked what I do/will be doing at my new job. Just those two questions and nothing else!

    Thank you to everyone who've read my posts, especially to JA and storbo. To others out there undergoing any immigration-related process, I wish you the best of luck. Keep the faith! :)
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