Questions- H1B in admin. processing/possible denial

Asked over 1 year ago - Cincinnati, OH

My H1B resulted in administrative processing after interviewing with US consulate in Tokyo. with this, I have following questions. Thank you in advance.
1. is it legal to continue working remotely and get paid while my case is in Admin. Processing?
2. my original refusal paperwork says "if you have not heard from the visa section within 45 days following your interview." does this mean 45 calendar days or 45 business days?
3. How long can this process take as the average? (if you ever experienced)

4. If my case gets denied;
a. can I still come back to the US with ESTA and a return ticket to prepare moving to my home country?
b. I am also currently processing an EB3 greencard application(I have I-140). does this get affected?
c. what kind of options do I have to re-obtain H1B?

Attorney answers (2)

  1. J Charles Ferrari

    Contributor Level 20


    Lawyer agrees

    Answered . US immigration law does not cover work performed outside the US. If you are denied a visa, you are no longer eligible for ESTA.

    Your employer needs to retain an experienced immigration lawyer, whether myself or one of my colleagues, to review all the facts, advise them, and handle the case.

    J Charles Ferrari Eng & Nishimura 213.622.2255 The statement above is general in nature and does not... more
  2. F. J. Capriotti III

    Contributor Level 20

    Answered . An initial H-1? An extension? A visa stamp from a COS that took place in the US?

    Without all the facts it is difficult to give good answers. So, please understand that these are guesses that shouldn't be relied on too much.

    You should talk to the lawyer that did the H papers.

    1. Yes, probably
    2. Calendar
    3. There is no average ...each case is unique. I've heard of it taking 6-9 months sometimes
    4.a. Probably not ... ESTA requires that you haven't been denied a visa
    b. Probably not
    c. Talk to the lawyer who prepared the H papers ... if you don't trust/like that lawyer ... hire a new one.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It... more

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