Lawfull status confusion owing to L1 Denial and H4 Pending?

[HasarangaWanindu]

My L1A based I-94 was expiring Nov 2020, and L1A extension was filed ahead in October. Owing to a RFE on L1A extension, to be safe, I also filed a H4 based on my spouse’s H1 in Dec 2020 (note: H4 petition is filed post i-94 expiry, and while L1A extension in progress).

My L1A extension was denied post RFE response in March 2021.omegle xender


Please help me understand,

1. If my current stay counts as lawfull
2. Is the H4 petition invalid owing to it being filed post I-94 expiry (Note: L1A extension was in process during this time, which is later denied).
3. Will the H4 be denied too owing to L1A denial and H4 was a transition from L1 to H4
4. Is it really recommended to travel out of USA and get H4 stamping. Considering the current pandemic situation and various restrictions around I am a bit concerned on this. I am a indian citizen, and it appears Covid situation there is getting bad.
5. My L1 Visa and petition are both valid till Dec 2021, will the denial of extension also invalidate the current visa expiry, or can i use this to get a new i-94 via border crossing.

Please help.

[rkk09]

Hi,
Here is my thought on your question.
1. If my current stay counts as lawfull
Answer: I dont think so, as you already filed H4 petition. With the help of H4 receipt, you can stay in the USA. But, Just have a concern as you did not have I-94 validity at the time of H4 filing.
2. Is the H4 petition invalid owing to it being filed post I-94 expiry (Note: L1A extension was in process during this time, which is later denied).
Answer: You will need to wait to hear back from USCIS, how they will react on the petition.
3. Will the H4 be denied too owing to L1A denial and H4 was a transition from L1 to H4
Answer: There is high possibility on denial of H4 petition.
4. Is it really recommended to travel out of USA and get H4 stamping. Considering the current pandemic situation and various restrictions around I am a bit concerned on this. I am a indian citizen, and it appears Covid situation there is getting bad.
Answer: This is good idea to get H4 visa stamp at consulate/ embassy. And many people are getting visa slots in India recent days.
5. My L1 Visa and petition are both valid till Dec 2021, will the denial of extension also invalidate the current visa expiry, or can i use this to get a new i-94 via border crossing.
Answer: This must be discussed with Immigration Attorney as it has to be reviewed many documents then they will suggest.
Thanks

[newacct]

Your L1 extension of stay was timely filed (filed while in status). Therefore, you were protected against accrual of "unlawful presence" while it was pending. Your Change of Status to H4 was not timely-filed, because it was filed when you were not in status (a pending application is not status). Therefore, you are not protected against accrual of unlawful presence while it is pending. Had your L1 extension of stay been approved, it would have granted L1 status during the period of time when your Change of Status to H4 was filed, retroactively making that timely-filed, and making you protected against accrual of unlawful presence while it was pending. But your L1 extension of stay was not approved, so that didn't happen. Since your L1 extension of stay protected you against accrual of unlawful presence but your Change of Status to H4 didn't, you started accruing unlawful presence from the denial date of your L1 extension of stay. You should leave the US before accruing 180 days of unlawful presence, or you will trigger a ban if you leave later.

Your Change of Status to H4 will most likely be denied, because generally Change of Status must be filed while in status, except in unusual circumstances when you can show "good cause" to file late and USCIS decides to allow it. In the unlikely case that your late Change of Status is allowed and approved, you would retroactively be granted status during the period requested, so you would not have accrued that much unlawful presence. But waiting for the result is very risky, because in the likely case that your Change of Status is denied, you would still have accrued unlawful presence during all this time, and by the time a decision is made, you would have accrued enough unlawful presence that you would trigger a ban upon leaving.

The fact that you have accrued any amount of unlawful presence at all means that the visa that you used to enter (the L1 visa) is now void, and you can only apply for US visas in your country of nationality from now on.