QUESTION- I have been working in the US in H-1B status since 2005. Shortly after I came to the U.S. my company transferred me to a different location, but never filed an amendment to my H-1B. In 2008 my company filed an extension of my H-1B petition, but due to the fact that I had been working in a different location, my Extension of Status was denied in February of 2009. My company has filed an appeal of the denial to the AAO, but I am not hopeful about the chances of the denial being overturned. My company has filed an I-140 petition for me, but I have not filed an I-485 application for adjustment of status as a visa is not yet available for my petition. What are my options?

ANSWER- Your biggest concern is that you have begun to accrue unlawful presence as of the date that your extension of status was denied. The fact that the denial has been appealed does not stop unlawful presence from accruing. If you remain in the U.S. more than 180 days from the date of your denial you will be limiting your options.

However, if you leave the U.S. before then, you can have your company file a new H-1B petition for you (you will not be subject to the cap) and you can apply for a new H-1B visa. Your past violation should not bar you from being able to receive a new H-1B visa, since there was no fraud, but only an oversight on the part of your company. For an additional $1,000 filing fee, your company can premium process the petition, so that it will only take a few weeks to have the new petition approved. Once you reenter on the new visa, your previous status violation and employment without authorization will be forgiven and should not harm you when it is time to file your application for adjustment of status.