H1b extension approved, H4 extension denied - Please advise

[kuhldude2005]

Hello gurus,

Please advise.

My H1b extension along with my wife's h4 extension (I539 EOS) papers are sent to USCIS on 20th Dec 2010 and are received by USCIS by 21st Dec 2010. My H1b expired on 5th Jan 2011.
My wife and I had to travel to India around the same time, left US on 4th Dec and back on 20th Dec. Got a new I-94, that expired on 15th Jan 2011.
But the extension papers sent on 20th Dec to USCIS had the old I-94, not the new one that we got on 20th Dec.

Yesterday, I got an e-mail notification from USCIS, that my I-129 is approved and my wife's I539 EOS is denied. I haven't received the notices yet.

I guess, denial is due to the old I-94, sent along with the petition.
I'm also guessing that my new I797, will not have I-94 with it.

The options, that i know are,
1. Go to India, get visa stamped and come back
2. Go to Canada/Mexico, get visa stamped and come back. (This is my fourth H1b stamping)
3. Motion to reopen.

Are there any other options, that i'm not aware of?
Which option is best suited to my case?
If i go with Motion to reopen, how long this process is going to take and what are the chances of approval?
My GC is progress (approved I140 and waiting to apply for I485), How is this going to effect this process?

Appreciate your help!!

[kuhldude2005]

Please advise, Seniors txh1b or shervin143

[shervin143]

MTR is risky. First of all it might take another 2-3 months to get a result and if the case gets denied gain, then all the time spend in U.S after the I-94 expiry date will be considered illegal. That may have impact on your GC process. Your best bet is to leave the country and re-enter in H1B and H4 visas.

https://www.immihelp.com/usa-visas/v...gcanadamexico/

[kuhldude2005]

Thanks shervin143 for your advice!!

I'm thinking of going to Canada or Mexico for stamping.
But concerned, that I may be almost two weeks out of status (starting 17th Feb), by the time the appointment dates are available.
Will that be an issue?

Thanks!!

[shervin143]

If they issue you a 221g for admin processing, then you could get struck there for a while. Also, when you have accumulated illegal stay or out of status, it is not advisable to go to any other country other than your home country for stamping. So if you decide to go to any of the neighbouring countries, then have a backup plan just in case you have to wait there for a while.

[kuhldude2005]

Got the denial notice today for extension of stay.

USCIS records indicate that the beneficiary was last admitted to the US on Aug 16th and subsequently departed on Dec 4th. The I 129 petition was filed with USCIS on December 21st, a date subsequent to the beneficiary's departure from US. There is no record that the beneficiary reentered the US prior to the filing of the current I-129 petition. As noted above, USCIS is precluded from granting an extension of stay where the beneficiary is not physically present at the time of filing. Therefore the requested extension of status may not be approved.
Please note that the approved I-129 petition for H1b has been forwarded to chennai consulate as requested.

shervin,
Should i take a chance with MTR? I've I-94 that clearly states, I'm physically present in US on 20th Dec.
If I go with MTR, work during the MTR process and MTR gets successfully approved, I know that i get my status back retroactively. Will USCIS question, why i worked when MTR was pending, for my GC in future?
Thanks for your advice.

[shervin143]

Yes you can file MTR. A good immigration attorney should be able to help you clear this. However, like I mentioned earlier, if the MTR gets denied, then your stay in the country after the I-94 expiry date is considred illegal and so is your employment. So it is a bit risky.