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h1b post decision activity after NOID

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asked Nov 25, 2015 in H1B: Extensions by abhishek.wip (300 points)
My Employer received a NOID (Notice of intent to denial) for pending h1b extension on 16th Nov. Application was filed in premium category. My employer told me that We have the time till 16 Dec to reply to the NOID query. Today, i saw case status update as "document is mailed" on USCIS site. I have got an email, since i had created my account on USCIS website to receive status alerts, where case status is showing as "post decision activity". I am confused about the case status update. We have not replied to the query yet. Have they already made the decision without waiting for the reply?

1 Answer

0 votes
answered Nov 25, 2015 by dan (24,504 points)
Please answer the following and see my comments below:

1) Do you know what the NOID notice requested?

2) Did they get an RFE for this case before NOID? (This is common)

3) Was this the first or second NOID?

4) Are you filing an H1B Extension with the same employer?

The NOID always has a 30 day response time. Please don't panic with the Case status on USCIS website. The updates are confusing when there is an NOID (Notice of Intent to Deny).

Also, most NOIDs are related to H1B fee matters where employers have submitted incorrect fee, based on number of employees.

Please relax and ask your employer for a copy of NOID or at least en email with it's contents and do provide more information on this thread!
commented Dec 11, 2015 by abhishek.wip (300 points)
Here are my comments:

1- NOID notice requested to explain the reason for not filing h1b amendment while the location was changed.
2- We did not receive any RFE.
3- first NOID.
4- Employer is same.

I also want to know if the extension gets denied, can i go back to India and file an extension again or transfer my expired petition to some other employer?
commented Dec 11, 2015 by dan (24,504 points)
NOID is like an RFE, it is not easy to overcome the issue of not filing the H1B amendment in time. However, your employer may explain that USCIS has made some exceptions for H1B amendments recently.

Relocation on or Before April 9, 2015: No Retroactive Application

Per the final guidance memo, if an H1B worker relocated on or before April 9, 2015, which is the date the Simeio Solutions case was decided, the employer may choose to file an H1B amendment, but generally is not required to do so based solely on the location change. Rather, the memo explains that the USCIS will not penalize employers in such cases for failing to file H1B amendments. Employers that elect to file H1B amendments in these cases, however, should do so within the six-month grace period, explained below.

Note, however, that these protections only apply to "… new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition …" If an adverse action was initiated prior to the July 21, 2015 release of this memo, the USCIS may continue to pursue the matter, even if the case involves an H1B relocation that occurred prior to April 10th.

Relocation Between April 9 and August 19, 2015

If an H1B worker was or will be relocated after April 9, but before August 19, 2015, an H1B amendment must be filed by January 15, 2016. This, of course, is assuming the new worksite is not covered by the LCA that was filed with the existing H1B petition.

If a petitioner does not file a required H1B amendment by the January 15th deadline, this could lead the USCIS to issue a notice of intent to revoke (NOIR). Further, even if no NOIR is issued, a failure to file an amendment could be viewed as a status violation for the H1B worker. This, in turn, could create problems for the worker, such as when applying for an extension of status or change of employer.

Relocation On or After August 19, 2015

Beginning August 19, 2015, for any "… change in the place of employment (not covered by an existing, approved H1B petition) … the petitioner must file an amended or new petition before the employee begins working at the new location."
commented Dec 11, 2015 by dan (24,504 points)
If the H1B Extension is denied, you can always go back to India and get another H1B as consular processing or if you have a valid H1B Visa stamping, employer may request to notify a POE (Port of Entry)
commented Jan 4, 2016 by abhishek.wip (300 points)
edited Jan 4, 2016 by abhishek.wip
Hi,

  My h1b extensio got approved but extension of stay got denied.  My I94 had expired on 19Oct 2015. I got denial notice for I539 for my Wife but we have not received the approval notice yet. I am leaving US in next 2 days.

 I am told overstay is considered from the day denial/approval notice is received. I hope i will leave before that. I am planning to go for stamping. Would this denial of extension of stay create an issue in stamping? Is it advised to go for dropbox stamping in this case?
commented Jan 4, 2016 by dan (24,504 points)

Yes, the overstay will be considered from the day the denial notice is physically received in the mail, please keep a copy of the Envelope used to send the denial notice which bears the post office stamp for your records. Since you are leaving the country right after denial of H1B extension, you may not get into much trouble as you are complying with the laws. 

I am not sure about dropbox in your case, since you have an extension denial (Whichy may not be your case) please see below:

INTERVIEW WAIVER PROGRAM "DROP-BOX" CHECKLIST

If you can answer “yes” to all of the following questions, you qualify for our Interview Waiver Program “Drop-box”. You do not need to schedule an appointment at a Visa Application Center. Please log in, create your profile, proceed with your application, and print two copies of the submission letter. Drop off your passport along with the listed documents mentioned on the submission letter at one of our 11 service centers.

Eligibility Criteria for all applicants except child below 14 years of age and applicant above 80 years of age or older:

  • I have a previous U.S. visa in the same class as the visa for which i wish to apply
  • My most recent visa was issued in India
  • I received my visa after January 1, 2008
  • My prior visa is not annotated “Clearance Received” or “Department Authorization”.
  • My most recent visa (in the same class for which I am applying) was issued on or after my 14th birthday
  • I have no refusals for a visa in any class after my most recent visa issuance
  • If I am applying for an H or L (individual) visa, my prior visa in the same class is still valid or expired within the last 12 months.
ALSO, ASK EMPLOYER TO UPDATE PIMS BEFORE YOU APPLY FOR A VISA, READ 
commented Jan 4, 2016 by dan (24,504 points)
I am not clear about H4/I-539, please clarify about your spouse. Thanks!
commented Jan 4, 2016 by abhishek.wip (300 points)

It is just extension of stay denial. My i129 is approved (that means h1b extension approved). i think i can say "Yes" in all the these category:

  • I have a previous U.S. visa in the same class as the visa for which i wish to apply - YES
  • My most recent visa was issued in India - YES
  • I received my visa after January 1, 2008 - YES
  • My prior visa is not annotated “Clearance Received” or “Department Authorization”. - YES
  • My most recent visa (in the same class for which I am applying) was issued on or after my 14th birthday - YES
  • I have no refusals for a visa in any class after my most recent visa issuance - YES
  • If I am applying for an H or L (individual) visa, my prior visa in the same class is still valid or expired within the last 12 months. - YES
commented Jan 4, 2016 by dan (24,504 points)
Your H1B is approved as consular processing and your H1B Extension is denied (no I-94). However, I am assuming you will qualify for drop-box.

If you are looking for a Project or an H1B Visa Transfer, with Immediate GC Process, please call us at (800) 693-8939 or h1btransfer@hireitpeople.com

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