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H1B Apprival received beyond 6 years without GC under processing

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  • H1B Apprival received beyond 6 years without GC under processing

    Hi,

    In Dec 2010, I will complete 5 years in US on my H1B. I'm changing my job and the new employer filed H1B transfer(premium). Ideally, I should have got an extension till Dec 2011, since I have not filed for my GC. But the new petition came with end validity date as Oct, 2013, which is very unusal.

    I would like to know if same has faced similar situation. Any idea, whether its the attoreys fault, USCIS fault? What is the probability that they catch this error while stamping , POE or GC filing?

    Any help is appraciate.

    Regards

  • #2
    Sometimes USCIS will approve the petition without looking deeply into prior approval durations. It is the individula's responsibility to not over stay beyond 6 years on H1B when GC process hasn't started.
    Not a legal advice. Use of this information is strictly at your own risk.

    Comment


    • #3
      shervin143 - Thanks for the response!

      Does the individual has to voluntarily leave the country, even though s/he has a valid I94 with him?

      Comment


      • #4
        Yes. Otherwise you may face issues with your future petitions, Stamping and GC process. H1B is only valid for 6 years.

        Originally posted by maru View Post
        shervin143 - Thanks for the response!

        Does the individual has to voluntarily leave the country, even though s/he has a valid I94 with him?
        Not a legal advice. Use of this information is strictly at your own risk.

        Comment


        • #5
          I disagree with Shervin though. Recently one of my friend after finishing 6yrs of H1 period, applied for H1 extension based on Labor filed, though the labor was NOT approved yet - was held in audit. In ideal situation he would have got 1yr extension but he got for 3yrs. When enquired with his company immigration specialist, they told him the H1 period was based on the client letter that was provided which showed that his services would be needed for another 3yrs and above. May be thats the case with you too, where your company/client had predicted your services would be required for another 3yrs or more. I might be wrong, may be Shervin is wrong too (no offense), please run it thru your company attorney, if you should be going out of country even though you have valid H1 issued by USCIS. - I seriously doubt though.

          Comment


          • #6
            Originally posted by maverick7008 View Post
            I disagree with Shervin though. Recently one of my friend after finishing 6yrs of H1 period, applied for H1 extension based on Labor filed, though the labor was NOT approved yet - was held in audit. In ideal situation he would have got 1yr extension but he got for 3yrs. When enquired with his company immigration specialist, they told him the H1 period was based on the client letter that was provided which showed that his services would be needed for another 3yrs and above. May be thats the case with you too, where your company/client had predicted your services would be required for another 3yrs or more. I might be wrong, may be Shervin is wrong too (no offense), please run it thru your company attorney, if you should be going out of country even though you have valid H1 issued by USCIS. - I seriously doubt though.
            What you say is incorrect. Any erroneous approval by USCIS should not be used by the beneficiary if they have any intention of continuing the GC process.

            many times USCIS errorneously approves petitions for a longer period of time than the allowed period. The burden of adhering to the law is on the person and not USCIS. The individual has to make sure that the period of 6 years are met. I have had friends that had to leave due to USCIS errors.

            Whatever the immigration specialist told is incorrect and Shervin is right.

            I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

            Comment


            • #7
              I would advise consulting an attorney over this matter. I am of the view that the person can work as fas as the approval in good faith.
              This is my opinion and not legal advice.

              Comment


              • #8
                Originally posted by kabkaba View Post
                I would advise consulting an attorney over this matter. I am of the view that the person can work as fas as the approval in good faith.
                Sure can consult an attorney. Better go with one that *knows* what they are talking.

                FYI...Working past the allowed time even if USCIS approved it is considered illegal.

                I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

                Comment


                • #9
                  Posting more clarification for the forum.

                  Many companies and lawfirs request 2-3 years as a standard for H1b extensions without checking the "actual" time spent on H1b in the US.

                  Only time that can be used to stay past the 6 year period is time spent outside the US on vacations etc. That also has to be documented and requested from USCIS.

                  USCIS will go ahead and approve whatever is requested many times as for ANY immigration benefit, the burden of proof and meeting the lawful allowed timeframe is in the hands of the immigrant.

                  It is similar to a D/S entry on Student I-94. As the I-94 does not have a date and is valid through the duration of study, a student cannot live past the last date on I-20 without getting a newer I-20 issued. This example is not similar but close to it.

                  OP can check with reputed lawfirms for reconfirming my answer but I am more than 200% sure about what I am saying here. I have had close co-workers impacted by this issue and had to leave the country in the 11th hour as HR noticed it and said Ooops...sorry, your 6 years is over and you have to leave even if the I-94 is valid and petition is valid as it would be illegal employment. The law firm said SOL.

                  I am talking about a company that has a legal department bigger than the IT department

                  I am not a lawyer and you need to consult with one to validate any info posted on the forum and discuss your case specifics. H1b Question? Read the FAQ first.

                  Comment


                  • #10
                    Thanks everyone for your response!!

                    I guess I have to speak to a specialist immigration attrorey to decide whether I can stay beyond 6 yrs in this situation.

                    Comment


                    • #11
                      H1b beyoun 6 years

                      Hi Maru,

                      I am also in same situation like you, what happened to your case ? can you please let me know in details?

                      Thanks


                      Originally posted by maru View Post
                      Thanks everyone for your response!!

                      I guess I have to speak to a specialist immigration attrorey to decide whether I can stay beyond 6 yrs in this situation.

                      Comment


                      • #12
                        overstayed on h1b 6 years but valid I94

                        Hello Maru.. Please let me know what happened with your case as i am in similar situation and wanted to go back. My h1b 6 years expired in april 2015 but my company applied for extension in 2014 for 2 years which was approved by uscis until april 2016.i overstayed until company piqued out and had to travel back in 10 days. I94 is still valid but overstayed on h1b for 345 days as company was in confusion that my h1b was fresh petition or cap exempt.Please help what to do???my perm was filed oct 2015 and is under process..



                        Originally posted by vishusoni View Post
                        Hi Maru,

                        I am also in same situation like you, what happened to your case ? can you please let me know in details?

                        Thanks

                        Comment


                        • #13
                          hi Nidhu

                          Hey Nidhu , Can you please lets us know what happened to your case? I also have same situation that my 6 years is already completed on Feb 24 2017, and my 1-94 and 797 is valid till july 3 2017.My perm was filed by another company in Aug 2015 and my I-140 got approved in 6 Apr 2017.

                          1) I have already over stayed in USA after completed 6 years , Am I out of status?
                          2) Since my 140 is approved from anther company , my current company can file my H1 extesntion based in 140 approval(I have already overstayed beyond 6 years)?
                          3)Do I have to leave USA to file my extension?

                          Comment


                          • #14
                            Originally posted by kc25 View Post
                            Hey Nidhu , Can you please lets us know what happened to your case? I also have same situation that my 6 years is already completed on Feb 24 2017, and my 1-94 and 797 is valid till july 3 2017.My perm was filed by another company in Aug 2015 and my I-140 got approved in 6 Apr 2017.

                            1) I have already over stayed in USA after completed 6 years , Am I out of status?
                            Yes.

                            2) Since my 140 is approved from anther company , my current company can file my H1 extension based in 140 approval(I have already overstayed beyond 6 years)?
                            Yes. The sooner they do it the better, since you do not want to accrue a longer amount of "out of status" stay.

                            3)Do I have to leave USA to file my extension?
                            Be prepared to not get COS, but instead be asked to go the consular route. So you would have to leave and get a fresh visa.
                            Just an opinion; Not legal advice.

                            Comment

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