Am I legal to stay in the U.S. if my COS is in process?

[karth1b]

To make you clear let me explain my issue:
I entered the U.S. with a H4 visa status, where the corresponding I-94 & the H4 visa got expired as on 31st Aug 2010.
So I filied for my H4-Extn. & got my I-797C - Receipt Notice as on 4th May 2010, which was got denied as on 31st Jan 2011 after replying the RFE as on 1st Sept 2010. Yet to recieve the denial notice for my H4 Extn. officially from USCIS.

Mean while I filed for my H-1B visa status(Form I-129, Petition for a Nonimmigrant Worker) as on 2nd July 2010 & notice dt 3rd July 2010.

I got the approval Notice dt 1st Oct 2010 valid from 21st Oct 2010 to 30th Sep 2013 with a I-797B, Notice of action (i.e without an I-94).




Scenario I'm aware that,

1. When I apply a COS (H4 to H-1B visa status) inside the U.S. in a valid nonimmigrant status AT THE TIME THE I-129 IS FILED I should get I-797A Approval Notice(i.e with an I-94 at the bottom).
2. The beneficiary will get I-797B only when he/she is outside the U.S. OR inside the U.S. out of status (i.e if my stay shown on my H4 visa status's I-94 arrival-departure document had already expired USCIS will not grant a COS by giving I-797A, notice of action.)

The 1st scenario holds good to me. So I filied the amendment as on Dec 2010 (normal processing) for my COS since at the time the I-129 was filed I hold a valid non-immigrant status.



My questions are,

1. Whats the possiblity of me getting the COS (i.e. I-797A Approval Notice with an I-94 at the bottom) since my H4 was denied?
2. Understanding my above explained issues & when my COS is in process, Am I legal to stay in the U.S. till I get my I-797A, Notice of action (i.e with an I-94 at the bottom)? If my stay is legal, is it possible for you to share the reference link of the same?
   
   NOTE: USCIS says if I have not violated the terms of my status & meet the basic eligibility requirements, I may remain in the U.S. until we make a decision on my application.
   

Waiting for the Opinions in this issue
Thanks in advance.

[kabkaba]

You may be eligible to file an appeal but only an experienced attorney can advise you in this matter. Consult one ASAP as you may be already accumulating illegal time.

[txh1b]

There must be some reason why your H4 got denied and your COS got denied as well and was approved as a CP. USCIS thinks that you are not in status or the H1b holder is not maintaining proper status to make such decisions. COS approval is not a guranteed thing and your amendment may not reinstate your status. Under those circumstances, you will accumulate illegal stay from the date of expiry of the I94. You will be subject to 3 year ban on exceeding 180 days and 10 yr ban upon exceeding 365 days. Check with your attorney and act quickly on the best possible way to avoid the ban.

[karth1b]

After approval If the beneficiary is Inside the U.S. in a valid non-immigrant status AT THE TIME THE I-129 IS FILED then the bebeficiary can beginto work for the petitioning employer (i.e) the beneficiary should get I-797A instead I got I-797B.
Important dates: I-129 petition filed 2nd July 2010 & H4 visa's I-94 expired on 31st Aug 2010. So thats the reason we went for amendment.

There must be some reason why your H4 got denied and your COS got denied as well and was approved as a CP. USCIS thinks that you are not in status or the H1b holder is not maintaining proper status to make such decisions. COS approval is not a guranteed thing and your amendment may not reinstate your status. Under those circumstances, you will accumulate illegal stay from the date of expiry of the I94. You will be subject to 3 year ban on exceeding 180 days and 10 yr ban upon exceeding 365 days. Check with your attorney and act quickly on the best possible way to avoid the ban.

[kabkaba]

I think you have a case. Get an experience attorney to take it up with USCIS.

[karth1b]

I assuming that you are saying as per USCIS, USCIS have done some mistake. Anyway we have filed the amendment for the same & waiting for the decision.
So thanks for giving some hope.
Also I just want know that am I legal to stay in the U.S.
FYI: Please refer this one
But my doubt is AMENDMENT also come under decision process?

Note: Has discussed above in this thread, I like to mention it again the dates.
H4 visa status expired 31st Aug 2010, got denied on 31st Jan 2011 due to my spouse's H-1B denial.
H4 to H-1B filed on 2nd July, approved on 1st Oct & amendment is in process which was applied on Dec 2010.

I think you have a case. Get an experience attorney to take it up with USCIS.

[kabkaba]

[LIST=1][*]When I apply a COS (H4 to H-1B visa status) inside the U.S. in a valid nonimmigrant status AT THE TIME THE I-129 IS FILED I should get I-797A Approval Notice(i.e with an I-94 at the bottom).

This is applicable for I-539 based COS which goes into effect immediately. For any COS that goes into effect in the future (like H1 from Oct 1 or F1 from 30 days before classes), the person has to be in previous status until effective date (and not just the date COS was filed). In your case you were not in status until Oct 1, but only until Aug 31 when your last I-94 expired.
From Sep 1 to Sep 30 you were in petition pending status (which is not really legal status), so your H1 petition was not approved with an I-94.
But since you were in exceptional circumstances where you could not timely file for COS, you may qualify for nunc pro tunc (backdated) COS. An experienced attorney should be able to handle it. But, the argument against such a COS is that you have not been maintaining H1 status from this back date. So USCIS has grounds for denial there too.
Overall my advice is to leave the US and return with an H1 Visa. Since your I-94 expired on Aug 31, your illegal stay is counted from that date. Any further accrual can get you a ban.

[karth1b]

Thanks for your timely help. Its for great info to me.
Anyway I'm leaving U.S. within this week.

One more questions is, Will I have a problem in my H-1B interview because of my stay till now.

This is applicable for I-539 based COS which goes into effect immediately. For any COS that goes into effect in the future (like H1 from Oct 1 or F1 from 30 days before classes), the person has to be in previous status until effective date (and not just the date COS was filed). In your case you were not in status until Oct 1, but only until Aug 31 when your last I-94 expired.
From Sep 1 to Sep 30 you were in petition pending status (which is not really legal status), so your H1 petition was not approved with an I-94.
But since you were in exceptional circumstances where you could not timely file for COS, you may qualify for nunc pro tunc (backdated) COS. An experienced attorney should be able to handle it. But, the argument against such a COS is that you have not been maintaining H1 status from this back date. So USCIS has grounds for denial there too.
Overall my advice is to leave the US and return with an H1 Visa. Since your I-94 expired on Aug 31, your illegal stay is counted from that date. Any further accrual can get you a ban.

[kabkaba]

Thanks for your timely help. Its for great info to me.
Anyway I'm leaving U.S. within this week.

One more questions is, Will I have a problem in my H-1B interview because of my stay till now.

Unfortunately there can be problems. You should be able to articulate the exceptional circumstances that led you to not file timely extension. A date summary sheet showing the dates will be good.

[karth1b]

Got my H1-B visa on Feb 16th 2011

I got my approval notice for my H1-B, I-797A, Notice of Action (i.e with I-94 at the bottom) with effect from Feb 16th 2011-Sep 2013, which was filled by the same employer on 25th Aug 2010 & I'm unaware of the same. Later my employer informed me after getting this Approval Notice with I-94.

Also I didn't leave the U.S. after this approval & I continued my stay.

Sorry for this very late reply.

Thanks once again for your replies.

Unfortunately there can be problems. You should be able to articulate the exceptional circumstances that led you to not file timely extension. A date summary sheet showing the dates will be good.