I-94 Expiry, H1 Extension Pending

[Kudla]

My I-94 expires on 09/29, and my H1 extension petition(filed on 07/22) is pending. Can i stay beyond the expiry, coz of the pending petition ?

Please advise.

[shervin143]

Yes. But, if the extension gets denied, then your stay beyond the I-94 expiry date will be considered illegal.

[Kudla]

Yes. But, if the extension gets denied, then your stay beyond the I-94 expiry date will be considered illegal.

How do i mitigate this risk ? I have a contract with the client and i cannot leave the project mid-way. Also, they have furnished the requested client letter for this H1 extension petition. And again, does this affect my GC processing, as my I140 is approved and am waiting on for I485.

Please advise.

[shervin143]

One option is to convert the processing to premium and get the result within 15 days. It will cost an additional $1000.

You had 6 months to file the extension. The normal processing time itself is 2-3 months. You have just filed the extension 2 month ago.

How do i mitigate this risk ? I have a contract with the client and i cannot leave the project mid-way. Also, they have furnished the requested client letter for this H1 extension petition. And again, does this affect my GC processing, as my I140 is approved and am waiting on for I485.

Please advise.

[Kudla]

One option is to convert the processing to premium and get the result within 15 days. It will cost an additional $1000.

You had 6 months to file the extension. The normal processing time itself is 2-3 months. You have just filed the extension 2 month ago.

The petition was filed in april, but as we had got a RFE, the response was filed in july. On USCIS, it says they are bound to respond by 60 days which would be third week of sep. The I-94 is until end sep. Even if i go for premium it overshoots my I-94.

[Kudla]

Is this right ?

If a timely extension is filed (i.e. before the expiration of the current status), regulations allow individuals in H-1 status to continue to work for the same employer for up to 240 days while the extension petition is pending at USCIS. A new I-9 form must also be completed in the department in order for the H-1 holder to continue.

Could any of you, please confirm this information?

[shervin143]

That is correct. However, if your extension finally ends up getting denied, then your stay in the country after the I-94 expiry date will be considered illegal. If your total accumulated illegal stay is more than 180 days, you could get upto 3 year ban from entering U.S. If it is more than 365 days, then you could get upto 10 years.

Here is a similar post.
http://www.immihelp.com/forum/showthread.php?t=80501

[Kudla]

Isn't this contradictory?

That is correct. However, if your extension finally ends up getting denied, then your stay in the country after the I-94 expiry date will be considered illegal. If your total accumulated illegal stay is more than 180 days, you could get upto 3 year ban from entering U.S. If it is more than 365 days, then you could get upto 10 years.

Here is a similar post.
http://www.immihelp.com/forum/showthread.php?t=80501

If on one hand they say, we can stay for 240 days past expiry and on the other if the stay past expiry is considered illegal, if the extension is denied. Doesn't this sound contradictory? How can we know whether the extension would be approved or denied?

How about, if it is less than 180 days? My employer has spoken to USCIS, and says they have assured a response in another 3 weeks. This would be 2 weeks past the expiry of my I-94.

[txh1b]

Once could apply 6 months prior to 1-94 expiration to avoid such situations. Yes, it is a catch 22 and you just have to live with it, unfortunately.

[Kudla]

Can i travel out of USA ?

I got an update from my employer y'day saying they spoke to USCIS and they are saying we will get an decision on my extension petition in another 30 days(Extension petition filed in April, further i had an RFE and my employer had replied to USCIS on July 22).

I have plans for travel in November and i do not know what to do. As my I-94 is expired (End September) and the extension petition still pending, can i travel out of USA ? Is it must for me to be in USA until i get my new I-94 ?

Please advice.

[shervin143]

It is never advisable to travel when the extension is pending with USCIS. You can upgrade to premium anytime and get the result within 15 days.

I got an update from my employer y'day saying they spoke to USCIS and they are saying we will get an decision on my extension petition in another 30 days(Extension petition filed in April, further i had an RFE and my employer had replied to USCIS on July 22).

I have plans for travel in November and i do not know what to do. As my I-94 is expired (End September) and the extension petition still pending, can i travel out of USA ? Is it must for me to be in USA until i get my new I-94 ?

Please advice.

[Kudla]

Consequences?

It is never advisable to travel when the extension is pending with USCIS. You can upgrade to premium anytime and get the result within 15 days.

Now, my employer is not so keen on premium processing. All right, It is not advisable to travel when extension is pending. But if one has to travel, what are the consequences?

[shervin143]

Extension of stay might get denied. They cannot provide your an extension (new I-94) when you are outside the country. Even if the extension gets approved (assuming your petition was taken into procesisng before you leave the country) you might get an I-94 with the extension and upon your return you will get a new I-94 at the POE. You have now figure out which I-94 will be effective. Read about the last action rule in the forum.

Now, my employer is not so keen on premium processing. All right, It is not advisable to travel when extension is pending. But if one has to travel, what are the consequences?

[Kudla]

Extension of stay might get denied. They cannot provide your an extension (new I-94) when you are outside the country. Even if the extension gets approved (assuming your petition was taken into procesisng before you leave the country) you might get an I-94 with the extension and upon your return you will get a new I-94 at the POE. You have now figure out which I-94 will be effective. Read about the last action rule in the forum.

It seems like if i stay it is illegal(i.e. If the extension petition is denied) and also not staying is not advisable.

[shervin143]

If you leave, it is not illegal. You are not breaking any law by leaving the country. You are just messing up your chances of getting an extension (you may or may not get an extension when you leave the country depending on when the application is taken for processing).

You had 6 months to file the extension, waiting till the last minute is your mistake. Also, there is a premium processing service available to overcome these situations.

It seems like if i stay it is illegal(i.e. If the extension petition is denied) and if i leave also it is illegal.