H-1B extension denied over disputed B-2 pending period — can USCIS effectively change the max-out date from my existing I-797?
Hi everyone,
I’m looking for experiences or insight from anyone who has dealt with an H-1B denial involving recapture, a pending B-2 change of status, and the six-year H-1B maximum.
Here is my situation:
I am currently in the U.S. in H-1B status.
My existing H-1B I-797 was approved in September 2024 and is valid through August 28, 2026.
My I-94 also currently shows August 28, 2026.
My employer filed another H-1B extension in April 2026, requesting additional recapture time and a one-year AC21 extension.
USCIS issued an RFE questioning 116 days from December 30, 2020 through April 26, 2021.
During those 116 days, I was physically present in the U.S. with a B-2 I-539 pending after my prior H-1B employment/status ended. The B-2 application was eventually withdrawn, so USCIS stated in the RFE that I never actually obtained B-2 status.
Interestingly, when my current H-1B was approved in 2024, USCIS apparently accepted the calculation that resulted in my current August 28, 2026 expiration date.
In the new RFE, however, USCIS stated that according to its calculation, my six-year H-1B limit was approximately August 5, 2026.
USCIS denied the new extension in August 2026. I am still waiting for the actual denial notice explaining the basis.
My PERM was filed November 3, 2025, so it had not been pending for 365 days at the time this extension was filed. I understand why the requested AC21 extension may therefore have been denied. My bigger concern is what USCIS does with my existing H-1B approval through August 28.
My questions are:
Can USCIS state in the denial notice that my actual six-year maximum was August 5, even though I already have a previously approved I-797/I-94 valid through August 28?
Would denying the new extension automatically invalidate or shorten the validity period of my existing approved H-1B petition, or would USCIS need to separately revoke/reopen that approval?
Assuming the existing August 28 approval remains valid, can my employer file a new H-1B extension before August 28, using only the undisputed remaining H-1B time and excluding the disputed 116 days?
If that second petition is timely filed in regular processing, could I continue working under the 240-day rule while it is pending?
My PERM is expected to be decided soon. If PERM and then an I-140 are approved while petition #2 is pending, could the employer subsequently file another H-1B petition based on the approved I-140?
Has anyone personally had USCIS approve an H-1B through a particular date, then later determine during a subsequent extension that the earlier max-out calculation was wrong? If so, did USCIS actually change/revoke the previous approval, or did it simply deny the new extension?
I’m working with immigration counsel and will obviously follow their advice once we receive the denial notice. I’m mainly trying to find real-world examples of how USCIS handles an already-approved I-797 when it later disputes the underlying recapture calculation.
Thanks in advance, especially if anyone has dealt with a similar H-1B max-out/recapture situation.