As most of us know by now, Citizenship and Immigration Service is being arbitrary in denying H-1B visas. They have stock denial letters written out, and depending on the officers, are just sending them out without regards to what was sent to them in answering the Request for Evidence.
OPTIONS for EMPLOYERS:
If you need this employee, your best option is to sue Citizenship and Immigration Service in Federal Court. Requesting the Citizenship and Immigration Service to reopen and readjudicate the case is futile. The Citizenship and Immigration Service will take forever, and then grant you a denial. In a lawsuit, the bullshit reasons the Citizenship and Immigration Service gives for a denial falls apart.
If you win the case, the Employee gets reinstated. However, during the pendency of a lawsuit, the employee does not receive status, and if the employer loses in the suit, the employee may be subjected to penalties for unauthorized stay. Whether the employee wins or loses, depends on how the Employer has answer the Request for Evidence.
If the employee is on your current H-1B and wants to return back to her home country, you would have to pay for her return ticket back home. This is ONLY for the employee, who will not come back to the US, and not for any dependents thereof.
If the employee is on OPT, you can continue to hire her if her OPT is still valid and until such time as her OPT is still valid.
OPTIONS for EMPLOYEES:
Assuming the employee wants to stay in the US, her options are:
1 Converting to a B (Visitor’s) Visa: This might or might not buy the employee some time to resolve her affairs before leaving the US. However, beware, B visas are granted at the discretion of the adjudicating officers. A denial can have consequences for unauthorized stay
2 Converting to an F (Student) visa: If you want to further your education in the US, you can convert to an F Visa. Potential issues:
• You intent to leave the US (esp if you have an I-140 approved). The F Visa requires a strict NON IMMIGRANT intent, and the officer may deny the visa on that issue
• Having to reinstate out of the country: This is available if you are out of status, and you can go to a consulate (Canada, Mexico or your home country). This option is available, however——the Department of State might refuse if the school is not a good one, or they see it as just maintaining status. Also note: Government shutdown may affect Department of State’s budget
• Show sufficient funds to pay for the education—–This depends on how much money you have saved or do you have an affidavit of sponsorship
3 Converting to a dependent Visa—–like H-4, L-2 etc. If your spouse is in the US on a separate visa, this is a safer option
4 Marriage to US Citizen—–You might be able to get your Green Card, provided the MARRIAGE IS REAL. This should ONLY be used if you already have a US Citizen fiancé/fiancée
Whatever you do, make sure you do not have unlawful presence for more than 180 days at most. I would not advise of any unauthorized stay at all
For more information contact Banerjee & Associates