Help Please - missing documentation

[Sarla]

What is the name of your state? NY

My friend recently got his approved I-129 form and went to Estonia to get his visa stamped for travel. The consulate told him that he was missing certain documents. His H1B petition, a sworn statement that he did not work while here in the states and proof that he was here the entire time of his 16 month tourist visa.

He was told he needs the receipt showing they received his original application and additional information but the employer who filed it says he can not find the papers. If I go online to his case status it states he was approved on July 26th.

Now, his return flight is set for October 4th and is there anyway we can get copies of those documents from somewhere? ANd is there a reason they are requesting receipts when he has the approved form with him in person? And isn't his passport proof enough he did not leave the states while on his visa?

Non of this is making sense and we are both in a panic. ANy help would be greatly appreciated.

Thanks,

Sarla

 

[ImmigAttyLana]

The employer or the attorney who had filed the H-1B petition should have a copy of the H-1B receipt notice. This is likely being requested by the Consulate to make sure the H-1B petition was timely filed (before the B-2 expiration) and if they cannot locate a copy of it, it will take a long time to obtain it from the USCIS.

As for the copy of the H-1b petition, he should have had that with him at the time of applying for the H-1B visa, as this is always required.

It is advisable for the attorney the employer is working with to contact the Consulate directly and to find out what additional information can be provided quickly so that it may still be possible for your friend to make it back on the 4th.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[Sarla]

Thank you so much for your quick reply. I do have one more question. I was told that his I-129 approval is the H1B petition. That it becomes an H1B visa once it is stamped. Is this true?

Thanks,

Sarla

 

[ImmigAttyLana]

No, the approval is the approval--a single sheet of paper. The petition is what was filed on his behalf with the USCIS in order to obtain that approval notice and is usually a packet of forms, letter of support, certified LCA and supporting documentation. The US COnsulates abroad always need a copy of this (sometimes it needs to be a certified copy) in order to process the visa application for the H-1B visa on the basis of the approved petition.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[Sarla]

So in the event that his Employer can not find all the necessary documentation, which at this point in time seems to be the case, what is it we have to do to get copies from the USCIS and any idea on the length of time it may take?

Thanks again for all your help.

 

[ImmigAttyLana]

You are very unlikely to get the copies from the USCIS in time anyway (it often takes months to get these from them, if at all), I would suggest that you have an attorney contact the Consulate to see if there is an alternative to providing this one piece of paper. As for the rest, have the employer forward a copy of the actual petition that was submitted and see if that will suffice.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[Sarla]

I have another question...they still haven't been able to locate the original petition that was filed, nor the original I-94 which the lawyer said she seems to have misplaced..

My question is this, if the consulate does not accept the paperwork he does have and give him his stamp, and then we decided to file for a K1 Visa what are the chances of us getting approved on it? Being that the Consulate already knows him and his status for his H1B. Or are there any other options available to us that you would be able to recommend?

 

[ImmigAttyLana]

First of all, I would say this is VERY IRRESPONSIBLE and UNPROFESSIONAL on the part of this attorney, as one does not simply misplace a thick petition that was filed or the original documents that are the client's. I would strongly suggest that you INSIST the attorney locate these documents ASAP since your boyfriend's future really rides on this at the current time.

Secondly, even if you wanted to file for the K-1 fiance visa petition, this is not an immediate process. It will probably take about 4-8 months (depending on where you reside in the US) for this petition to be processed with the USCIS and only after it is approved would it be forwarded to the US COnsulate in Tallinn (or in Helsinki, whichever Consulate would process this, and I don't have that information with me at the moment) before your boyfriend could consular process for the K-1 visa. The fact that he has already been before the US Consulate on a H-1B visa application should not have any impact on the K-1 petition, but it will be a wait of at least several months, as mentioned above.

Clearly, this is the attorney's error in not preparing the complete and comprehensive packet for your boyfriend to take to the Consulate and you should really call him/her on this.

Please let me know if you have any additional questions or need further assistance with this matter.

 

[Sarla]

Yes I fully agree on this, but when I question him he claims that the Employer is doing what he can and the lawyer is still saying she can not find the documents. Regardless of whose fault it is the problem is without them I doubt very much he will get his stamp. The employer did write a note to the Consulate and apparently has had previous dealings with him for he addressed the letter on a first name basis. But that doesn't replace the paperwork needed. And at this point I have a feeling, even though it will still take months to file and see if we can get approved, that the K1 is still going to be faster.

Can you advise me on what can be done in a situation such as this if anything, where the original petition is misplaced along with the original I-94? They have kickback letters, responses to the kickbacks, a letter from the employer explaining the situation, his I-797 Notice of Action approving his I-129 H1B status but not the original petition

I really do appreciate all of your help in this.

Sarla

 

[ImmigAttyLana]

I think that if he cannot find a copy of the petition, it should nevertheless be fairly easy to reconstruct the filing as the attorney should have all the forms and letters of support on his/her system and it is just a matter of putting it together once more and having the employer sign in the appropriate places and then providing a letter to the consulate explaining that due to the inability to find the copy, the petition has been reconstructed.

without a copy of the petition, the consulate will not be able to issue a visa regardless of how many other documents that are not relevant may be presented.

please let me know if you have any additional questions or need further assistance with this matter.

 

[Sarla]

Hi Lana,

Just wanted to thank you for all your help with this situation. The information you supplied was more then helpful. He had his interview this morning, no more docs are needed and the consulate said once they get the security background check back and it is clear he will get his stamp and be able to return home! The letter his employer wrote seemed to do the trick.

Thanks again for all your help.

Sarla