Out of status under no payroll for 170 days on H1, pls help

[mrnnmr]

My husband is GC holder and i was working on H1 visa from 2005 Oct to 2008 Jan.But i stopped working since Feb 2008 after i has a baby and have not been on payroll since then and been out of status. My husband would get his citizenship in Jan2010 after which in another 6 months or so i will get my GC. So since i am already out of status i was thinking i will stay back in US for another 2-21/2 yrs till my i get my GC after my husband gets his citizenship.But i read somewhere that if a person is not under payroll for 6 months(180 days) or more he/she would get a bar for 3 yrs, and if the person stays in US with no payroll for more than a year then he/she will get bar for 10 yrs. So after knowing these figures i am confused and thinking of going to India before i complete 180 days, as i am worried about the 10 yr bar if i leave US after 1 yr. I am just left with another 10 days to reach the 180 days gap not being payed. Can someone please tell me whether they would bar for 3 yrs depending on the exact count of days.I am just trying to know if i leave US now just before i complete 180 days will the number for bar years become less than 3 years or so?or would it still remain 3 years.Please suggest what would be the best thing to do.

[C4us]

Why are you not returning to work so you will be in status?

[txh1b]

Talk to an attorney. You need to be paid on H1b at all times and working. How will you return if you leave? Has your I-94 expired? There is a difference between out of status and illegal presence. However, both are bad. The former is lil better than the latter.

[mrnnmr]

Same

I had doubts like

1)If i go back to work now and get some latest pay slips ( like 2-3 pay slips as my employer pay on weekly basis) and go to India and try for getting stamped will i be able to come back upon succesful stamping.And we did check with an attorney on this recently by consulting her for an hour and she said that it wont help me as that gap of 5-6 month with no pay is going to ruin everything and i might get barred for 3 or 10 yrs. But i somehow still feel and not been convinced because i always feel if i go back to work and work for like 4-5 months then is that not something better and that can be overlooked for the gap?.But again i doubt even on that because if thats the case then all of us would have done that on H1 ( work whenever we want).Someone please give me your thoughts or opinion on this.I am highly confused and if my bar period would lessen than 3 yrs by leaving US just before reaching the 180 days out of period ( which means i am left with just 10 days) then i am thinking of making urgent trip and leaving the country with my little baby, please suggest if i should again consult another attorney on this.

My I-94 is going to expire in June 2009, however the attorney did mention that the I94 does not know have any validity as i need to be working every single day while on H1 and things that are done cant be undone. Infact she told even if i go to India and do not get stamped and want to come back after my husband gets his citizenship that would be highly impossible, for that matter i can never ever come back on any visa category till the bar period is over

[txh1b]

Your attorney is damn right in what they told you. You are risking your status. If you go and work for the same employer and start getting paid, you are back in status but the past "not in status" period does not get erased.

May cause problems if you go for H1b stamping or GC later on. There is not much you can do other than get back in status and continue working immediately. If you leave the country, you know what problems you will face as you don't have proper W2.

Get back to work and get paid NOW!!!!! and do not travel till you get your I485 filed on family basis is my opinion. Get a second lawyer opinion.

[C4us]

First: Does your company have a maternity leave policy. Typical ones are 6 to 8 weeks.

Second: Does your company have FMLA policy and do you qualify? This is up to 12 weeks.

Both of these could have been used as medical leave which would not count towards being unemployed on H1B.

Was your attorney an immigration specialist?

[txh1b]

Good points C4us! May be maternity combined with some bonding period and leave of absence without pay will help in your case. But you need to get back to work ASAP to reduce the damage.

[mrnnmr]

Thanks for all your quick responses.

I had used 12 weeks maternity leave provided by my company (from Nov 4th 2007 to Jan 27 2008).

The FMLA leave provided by my company was 12 weeks which i used already as maternity leave

My company said they would not do leave of absence.

The attorney i consulted was immigration specialist( by name Deepa Thakkur).

So now with all the feedback i am thinking of getting back to work, but however that would not help me in visiting India in the next 2 1/2 yrs by when i can apply and get my GC after my husband gets his citizenship in another 2 years.I understand that by getting back to work i wont be damaging further but does that reallu help me in any other way other not ruining my status further in US?

The thing is i am not sure if i can stay for the next 2 years without visiting India and my people back home.So if i leave now and get barred for even less than 3 years i was thinking that would be fine, because the term ( Bar for 10 years after 1 year stay with out of status) scared me further compared to the 3 years bar which sounds better compared to 10 years

[txh1b]

Out of status and illegally present are two different things though can be used exchangeably in many circumstances. The bar is typically for illegally present but can be interpreted otherwise as well. You need to talk to some other attorney and get a good opinion.

Are you saying you can live without your husband but cannot live without visiting India?

[mrnnmr]

I am not very comfortable though to leave my husband if if he has to stay in the US until he gets his citizenship but at the same time actually me and my husband are so much disturbed due to this compicated issue that me including my husband are also getting inclined towards preparing to be fine to give up citizenship.

Because i am concerned if in case i will for someone inevitable circumstance i will want to leave US in another 6 months(by when i wud hit 1 year out of status period)which means if i leave US then, then i will be barred for 10 years.I am mainly worried if cant make it for the next 2 1/2 years then i will unncessarily be subjected to 10 yrs bar.

Also i very much want to know what if i leave US just before 180 days out of status period, will i be still be subjected to 3 years bar or lesser than 3 years.Based on some of my doubts on further minute details i am thinking of consulting another attorney on hourly basis. I dont know would help as i have already been clarified on overall situtaion through one of the attorney recently.

[txh1b]

Again, look at my previous post. Out of status and illegally present are two different things. You should talk to an attorney that can really explain you what they mean and how the ban applies. If you get to enter US on a H1b status successfully and work, your previous out of status period can be forgiven under 245(k) rule.

That is why I mentioned you need to talk to a good attorney that can explain you the difference. You and your husband need not spend sleepless nights on this issue though it is grave and serios, it does not warrant so much attention if he gets his citizenship.

You need to plan your travel carefully. Utilize your maternity leave to your benefit and leave the country only if you need to after evaluating all pros and cons with a qualified attorney.