H1b extension pending_I-94 expired since over 5 months. Guidance needed ?

[gagan11]

Hi, it seems I'm stuck in a situation where my status is at a risk and I'm looking for some guidance.
I came to US in Aug 2006 on F1 (student visa) but never left the country since then.
I worked on my OPT and after that have been working on my H1b since then as a Software Consultant without any break in payroll or any other issues.


USCIS received my petition for extension of my H1b on Jan 23, 2012.
My H1b and I-94 expired on Feb 1, 2012 .
H1b extension petition is still pending since Jan 23, 2012 and it appears I have potentially accumulated (unknowingly due to ignorance) almost 5 months of illegal stay .
Making the petition Premium Processing in 1-2 days- Employer working on it.

I fear that I might get H1b approved without I-94 ( I-797B) and by the time that decision is made( considering RFE comes), I would be over 180 days of illegal stay and as a result incur 3-year ban .
1) Is that a correction assumption or that would happen only if H1b petition is denied / rejected ?

2) Not sure what to do - should I continue staying in the US or should I leave the country to avoid the 6 month illegal stay ? If the leave the country then I'll lose the current project/assignment also since the end-client won't wait for me or let me work remotely.

Any guidance here would be greatly appreciated.


Thanks
Gagan

[shervin143]

1) Is that a correction assumption or that would happen only if H1b petition is denied / rejected ?
>>> Since you filed the extension before your I-94 expiry date, your approval (if approved) should come with a new I-94. If that happens, then you are all good. If the extension gets denied or if it gets approved without a new I-94, then you will be in trouble.

2) Not sure what to do - should I continue staying in the US or should I leave the country to avoid the 6 month illegal stay ? If the leave the country then I'll lose the current project/assignment also since the end-client won't wait for me or let me work remotely.
>>> The best option is to upgrade the case to premium and get the result within 15 days and then decide on the next steps. If you leave now, then extension of stay will get denied and your stay past the I-94 expiry date will be treated as illegal stay.

[gagan11]

Shervin ,
Thanks for your advice. My employer assured me that he is upgrading my petition to Premium Processing and that USCIS will receive it latest by coming Monday if not by this Friday.

There is a likelihood of getting an RFE in my case ( as it happened before with the same end-client since they don't give client letter). Considering the timelines , it seems that the RFE will take me beyond 180 day period since I'll have to reply and then again wait for the decision.

1) Is there anything else I can do to be on the safer side -- finding a new employer to file another H1b petition ?

2) Also, one of previous approved H1b ( with a different employer) before I joined this employer , has an expiration date of Jan 31, 2013 -- for both H1b and I-94 attached to I-797A . Can that be of any use since my previous company hasn't canceled / revoked it ?


Thanks again.

[shervin143]

1) Is there anything else I can do to be on the safer side -- finding a new employer to file another H1b petition ?
>>> Finding a different employer will not work since you do not have a valid I-94 in hand. Your transfer will have to be filed as a bridging petition and the approval of the transfer will be based on the successful approval of the pending extension. Search and read about 'bridging'.

2) Also, one of previous approved H1b ( with a different employer) before I joined this employer , has an expiration date of Jan 31, 2013 -- for both H1b and I-94 attached to I-797A . Can that be of any use since my previous company hasn't canceled / revoked it ?
>>> It will be of no use. If you want to go back to work for that employer, you will either have to file a transfer or leave the country and return back on the previous employer's petition. Trying to get the current petition approved as quickly as possible is the best option. Waiting for this long without upgrading to premium or following up with USCIS is a biggest mistake.

[gagan11]

H1b extension pending_I-94 expired since over 5 months. Guidance needed ?

Shervin, thanks for your consistent guidance. This is where I stand now.

I had got my case for H1b extension turned to Premium Processing and got the RFE for it yesterday. The RFE mentioned "Time Limitation" as the USCIS folks incorrectly counted my entry date in US ( Aug 9, 2006) as the start date of my H1b but I had entered US on F1 (student visa). So, they thought my 6 years of H1b is getting completed on Aug 8, 2012 and asked why my employer is asking for extension.
So, my employer replied to this RFE yesterday. I know this initial RFE will get sorted out since it is a mistake by USCIS. My 6 years of H1b will get over on Sept 30, 2014.

1) What I am worried about is that this is delaying the decision on my H1b extension petition and I'm getting close to 180 days of potential illegal stay scenario ( about 17 more days). What are your thoughts on this ?

2) Is it possible to get another RFE after the current RFE for the same petition ? I don't know if the USCIS went through the entire case and had only this "Time Limitation" issue ( in that case I should be fine ) or if they didn't look at anything else and now after my employer's reply, they will look at the case in detail and may ask for more documents (another RFE) ? I would appreciate your opinion on this ?

3) Anything else I should / can do or just keep waiting for the decision and act accordingly.


Thanks in advance for your reply.
Gagan

[shervin143]

1) What I am worried about is that this is delaying the decision on my H1b extension petition and I'm getting close to 180 days of potential illegal stay scenario ( about 17 more days). What are your thoughts on this ?
>>> Once USCIS receives your RFE documents, they will respond back within 15 days as you case is filed in premium. So respond back to the RFE asap.

2) Is it possible to get another RFE after the current RFE for the same petition ? I don't know if the USCIS went through the entire case and had only this "Time Limitation" issue ( in that case I should be fine ) or if they didn't look at anything else and now after my employer's reply, they will look at the case in detail and may ask for more documents (another RFE) ? I would appreciate your opinion on this ?
>>> It is quite possible.

3) Anything else I should / can do or just keep waiting for the decision and act accordingly.
>>> There is nothing much you can do. If you leave the country now, the EOS can get denied and the time spend in U.S without a valid I-94 will be treated as illegal stay. Getting the extension approved is the only way out to be legally present.

[gagan11]

Shervin,
My employer got an email from USCIS saying that the I-129 petition has been approved (after the "time limitation" RFE which we had replied back quickly).
1) How can I be sure that the petition got approved with I-94 or not ?

The email they sent contained the following info:-
"...

Starting Validity Date: 02/02/12
Ending Validity Date: 09/30/14
Consulate notified (if applicable):
I-94 # (if applicable): my I-94 number is present

The form I-797 Approval Notice will follow in the mail.

..."

2) How long does it take to find out or when can i expect my employer to get this I-797 ?


Thanks again for your support,
Gagan

[shervin143]

1) How can I be sure that the petition got approved with I-94 or not ?
>>> Since your case is filed in premium, the employer/lawyer would have received the email notification about the approval/rejection. The I-94 number (if applicable) will be mentioned there and the duration of extension will also be mentioned there. If they did not receive any email, then you have to wait for the original approval notice to arrive by mail.

The email they sent contained the following info:-
"...

Starting Validity Date: 02/02/12
Ending Validity Date: 09/30/14
Consulate notified (if applicable):
I-94 # (if applicable): my I-94 number is present

The form I-797 Approval Notice will follow in the mail.

..."
>>> Well, in that case your petition is approved with a new I-94 since the I-94 number is mentioned in the email.

2) How long does it take to find out or when can i expect my employer to get this I-797 ?
>>> 2-3 weeks.