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Legal Basis to Work in U.S. If My Employer Reopens the H-1B Case

Hi William:

My employer is a consulting company, and it filed a H-1B extension application for me about 2 months ago. The H-1B extension application application was rejected last week, because of the working site requirement and management. 

My H-1B visa will expire soon. Now I need to know whether I have any legal basis to live and work in U.S. if my employer reopen the case?


Many employers and alien employees faced with H-1B denials immediately want to argue with the USCIS about the decision. The Motion to Reopen or Reconsider (MTR) provides no legal basis for alien employee to live and work in U.S. One of the driving factors in the decision to argue about a denial would be the incorrect belief that it provides the same benefits and privileges as a pending H-1B extension of status case. That is, employers and foreign nationals often assume that filing a motion to reopen or reconsider allows a foreign national to remain in the United States legally and continue to work while the motion is pending.

This is not correct. Under the regulations, filing a motion to reopen or reconsider does not stop the decision or its impact. If the motion is ultimately successful and the case is finally approved, then the situation will be resolved as if there had not been a denial. But, unless and until that happens, the case is still considered as having been denied. When the initial filing contains fatal flaws that make it not approvable under law, it remains as a denial - with or without the motion. It is important not to wrongly assume that the impact of a denial is eliminated by filing such motions.

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