Do I need to go to home country for stamping ?

[rkakani]

Hello All,

I have a weird situation and any experience and guidance is appreciated. I got my PERM approved recently and filed for I-140. However, I was on my 6th year and PERM was not filed with in 365 days of 6 years H1B Max out. The extension which was filed to recapture any time left out got rejected. At this juncture, I'm in out of status and waiting for I-140 to be approved and then file for H1B. But my employer told me that once I get my H1B approved on portability, I should travel internationally to get visa activated. Given this situation, and not having valid I-94, I can not continue work. However, my question is, can I go to Canada/Mexico for reactivating my visa or should I actually travel back to home country (India) for stamping. What are the odds against me , if I go to Canada/Mexico, given that I-94 is expired and not having H1B. How many days is it taking for getting the passport after visa is approved in Hyderabad consulate.. I heard that these days it is taking more than a month to get the passport and lot of rejections. Not sure, how far this is true, but wanted to weigh that based on first hand experiences.

Thanks
Kakani

[shervin143]

You are not out of status. You are illegal in the country. You should leave the country immediately. When did your I-94 expire? When you are out of status or have accumulated illegal stay, the chances of the visa getting rejected or put into 221g admin process is high. If you go to Canada or Mexico in this state and if your application gets put into 221g, you will have to stay there until the admin process gets completed. Or if it gets denied, you will have to go back to your home country from there. The more you accumulate illegal stay, then more issues you will have to face later with future petitions and visa stamping.

[rkakani]

I had this discussion with my attorney of immigration law and he had clearly mentioned that, my status is "Out of Status" not "Illegal".

[shervin143]

Do you have a valid I-94 with you? If not, you are illegal. If you have a valid I-94 but you are not working and getting paid (no play slips), then you are out of status. Consult a good immigration attorney.

I had this discussion with my attorney of immigration law and he had clearly mentioned that, my status is "Out of Status" not "Illegal".