question regarding re-capture time stay without i94 and h1b approval

[prasad3042]

I completed my 6 years stay in usa and came back to india. I stayed extra 3 months as part of my recapture time. Company applied i-797 for the extra 3 months at that time, but unfortunately usics confirmed that they never received my application when we followed up for approval notice. My questions are below:

1. will this impact my greeencard process that i dont have H1B approved for recapture time?
2. should i again apply i-797(H1B) or i have been suggested If i dont apply also it is ok as i stayed <179 days. what is the best case for applying h1?
3. even though i get my h1 approved under nunc pro tunc,i wont be getting i94. will this create a bar/issue for granting h1b in future?

Kindly provide any useful information if you might have.

Thanks.

[shervin143]

1. will this impact my greeencard process that i dont have H1B approved for recapture time?
>>> Hard to say. Technically you accumulated illegal stay for the duration you stayed in U.S without a valid I-94.

2. should i again apply i-797(H1B) or i have been suggested If i dont apply also it is ok as i stayed <179 days. what is the best case for applying h1?
>>> I am not sure what you are asking. The employer need to file a H1B petition for you and if that gets approved you will get a new I-797. That is your approval notice and without that you cannot work. Since you already used all 6 years in H1B, You need to spend 1 year outside U.S to file the H1B under a brand new CAP unless you have an approved I-140 that is currently valid.

3. even though i get my h1 approved under nunc pro tunc,i wont be getting i94. will this create a bar/issue for granting h1b in future?
>>> Again, it is hard to say since your presence without I-94 will still be treated as illegal stay.

[prasad3042]

1. will this impact my greeencard process that i dont have H1B approved for recapture time?
>>> Hard to say. Technically you accumulated illegal stay for the duration you stayed in U.S without a valid I-94.
Ans: ok
2. should i again apply i-797(H1B) or i have been suggested If i dont apply also it is ok as i stayed <179 days. what is the best case for applying h1?
>>> I am not sure what you are asking. The employer need to file a H1B petition for you and if that gets approved you will get a new I-797. That is your approval notice and without that you cannot work. Since you already used all 6 years in H1B, You need to spend 1 year outside U.S to file the H1B under a brand new CAP unless you have an approved I-140 that is currently valid.
Ans: Employer is going to file H1B. In my case my employer says they sent my petition for the recap period of 3 months while I was in USA but when we reached out to USICS for approval notice after 5 months then only we realized that they never received my application "Even though my employer posted the documents". This is the unique situation I am in. My employer tell me that either they can apply for H1B approval for the past period 3 months under Nunc Pro Tunc or do not take any action at all as stay is <180 days.
3. even though i get my h1 approved under nunc pro tunc,i wont be getting i94. will this create a bar/issue for granting h1b in future?
>>> Again, it is hard to say since your presence without I-94 will still be treated as illegal stay.

Yes: Yes that is what my worry and it will create an issue if I want to reenter USA or H1B approval.

[shervin143]

Well, if you have the copy of the approved LCA that was filed at that time and if you have the package that the lawyers sent to USCIS (the one that got missed),then at least you can show something to prove that the extension was filed by somehow got missed. It may help.

Yes: Yes that is what my worry and it will create an issue if I want to reenter USA or H1B approval.

[prasad3042]

Well, if you have the copy of the approved LCA that was filed at that time and if you have the package that the lawyers sent to USCIS (the one that got missed),then at least you can show something to prove that the extension was filed by somehow got missed. It may help.

Thanks so much Shervin for answering my questions patiently.

In your suggestion - if I do ask my employer for the proof that they have submitted LCA and other documents. Should i still proceed to file H1 extension for the past period where it is considered illegal stay?

My employer tells me that as I stayed <180 days it wont be a problem that time will be waved off. is that correct?

Thanks,

[shervin143]

In your suggestion - if I do ask my employer for the proof that they have submitted LCA and other documents. Should i still proceed to file H1 extension for the past period where it is considered illegal stay?
>>> Yes.

My employer tells me that as I stayed <180 days it wont be a problem that time will be waved off. is that correct?
>>> Not true. It depends on the officer who handles your case. Post 180 days, there is definite ban. Less than 180 days, it is up to the officer.