H-1 denial, appeal, MTR

My 10th yr H1B extension/my wife H4 was filed and got rejected. Following are the details. H1B/H4 filed: March 1st 2009 RFE was issued in April RFE replied: May 6th 2009 H1B/H4 denied: June 1st 2009 Our H1B/H4 I-94 expired: Apr 10, 2009 My company wanted to do a) file appeal and b) a brand new H1 with vermont center(along with original RFE/denial letter etc.). 1) While appeal is pending, if we don't file a new H1B, what is my status? Am I considered to be in status? 2) While new H1B is pending, what is my status? Am I considered to be in status? 3) Can we file brand new H1B through the same company while appeal is pending? 4) Can I work for my employer while appeal is pending, without filing new H1B? 5) Can I work for my employer while new H1B is pending? 6) Since my I-94 is expired, if we apply for H1B while appeal/MTR is pending, if it is approved, will I get the approval along with I-94 or with no I-94 at the bottom of the approval. I heard that in some cases they gave the approval from the date of new H1B petition. 7) When does the time for 180 days(towards 3yrs bar) start? Is it from my I-94 expiry date (or) my H1B petition denial date.

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ANSWER: 

1) When an H-1B is denied and your I-94 has expired, your out of status immediately upon denial AND you are accruing unlawful presence. An appeal or an MTR does not give you status nor does it stop the running of unlawful presence.

2) You are still out of status AND unlawfully present because the new H-1 was applied after your I-94 expired.

3) Too many variables. Generally speaking, USCIS is supposed to hold a new case pending if an appeal has been filed on exactly the same case.

4) No.

5) No.

6) This is totally in the discretion of USCIS. They can "forgive" your being out of status if there are VERY good reasons for it.

7) In your case, from the date of the denial. You were protected until the timely filed extension was pending.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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