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Old 12-18-2012, 05:23 PM
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ExtendedLEave is on a distinguished road
Default RFE on H1B Extension bcos of OutOfCountry Leave of absence

This is about a friend of mine. She and her husband are permanent residents of Canada and citizens of India. They have been in Canada since 2007. The husband got a job in the US as a pharmacy technician in 2009 August, and came to the US along with the wife and their two Canadian kids. He worked on it till Jan 2011. He then took a voluntary leave of absence with explicit acknowledge from the employer that he would be hired on returning back and went back to Canada with the family. The employer stopped paying him at this point. The whole family left US and went back to Canada. The employee also has a stamped US visitor’s visa in his passport and used that to come back once at which point he was given a new I-94 based on his visitors’ visa. He came back in Feb of 2012 along with the rest of the family, and using the letter from his employer acknowledging its intent to hire him back obtained a new I-94. The wife and children had not surrendered the original H4 I-94 and were admitted back on the same old I-94. He came back into the country at this point and resumed the same job and the employer started paying him again. The current I94 and the visa for the whole family expired in Aug 2012. A few weeks before the visa expired the company’s lawyer applied for H1B extension. He has continued working while waiting for the approval to come. Yesterday the lawyer got an RFE from immigration stating following:

“Your extension petition was filed without sufficient evidence to document that the beneficiary has been maintaining a valid nonimmigrant status throughout the H1-B previously approved period and at the time that the present petition was filed. Therefore, it is requested that you submit evidence to establish that the beneficiary has met the maintaining of status requirement. You may provide a combination of the following or similar types of evidence.”

Then it goes on asking for copies of pay records, pay stubs, leave and earnings statements, payroll summary, W-2, employment history changes, and statement attesting to the beneficiary’s current employment status, performance and/or work history.

Our plan of action is to send all the above requested documents and ask for expedited processing. We will attach a letter from the employer stating that the employee had requested and been granted a leave of absence with an offer to start employment again. The letter will have the usual rest of the information regarding the details of employment and pay.

We are debating whether to also include a signed affidavit from the employee stating all the facts above along with the reason that he had taken off for almost 13 months.

A few questions regarding the whole situation:

The employee has long term plans of applying for green card and does not want to accrue illegal stay or do anything that might jeopardize his future prospects.

A few questions regarding the situation that we would appreciate any answers/guidance on:

1. How complex is this case and how likely is it that his extension will get rejected? Can he submit any other documents to make his case stronger? He has done nothing illegal but does immigration consider it bad to take a break of a year from your job, leave the country and come back to the same job?

2. If his extension does get rejected when does he become out of status? When does his unlawful overstay start? What remedies does he have at that point? Does he need to leave the country immediately? Can he try and move to a student visa?

3. Can the wife who is on a h4 visa apply for a strident visa in the interim? As a backup so that if the extension gets denied they can move to student visa and dependent visa? Is there anything the couple can do so that they don't accrue illegal/overstay time if the extension comes back with rejection?

4. We are still ambivalent in terms of providing the reason of the leave of absence. It was a combination of circumstances some of which were medical in nature and the other was in terms of accruing adequate amount of time in Canada to become eligible for Citizenship. Should we mention this as a reason? Or should we mention the medical reason? Will these be looked upon negatively/positively?

5. Is it really important to send a signed affidavit from the employee stating all the facts? Isn’t that obvious from the other information that we are providing back? Is there any way this statement could be misconstrued and used by immigration against him either now or in the future? We are not too excited about this but the lawyer on the case is adamant.
6. USCIS mentioned that they didn’t think he was maintaining a valid status at the point of the application for extension. Their concern on the period that he was on leave of absence makes sense, but why would they think that he was not maintaining status at the point of application since he was working on the same job, getting paid and his paystubs were sent with the application. What possible violation could he be indulging in without knowing about it?
7. Final question regarding the case lawyer. We feel that he is a very cut and dry lawyer, doesn’t have much experience with any kind of case that’s not plain simple and is not doing adequate work towards the case. Can the lawyer be replaced at this point and does that raise red flags with USCIS? Is it a no-no to replace your lawyer midway through an application process? Is this lawyer really slacking behind and is there really something more than a different attorney could do?
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