L1B expiring- applied for extension

[ramkrishna322]

Hi,

I am working on L1B having visa/i-94 expiry date as 02/28.My company filed for extension(I129) and current status id request for evidence. My wife is working on Valid H1B. Here are my questions

What are the possible options to stay after my I-94 expiry date?

can i apply for status change to H4 now? will that affect current I129 extension process?

how soon should i apply for H4 and how many days will they take to approve it? can i stay here after applying for cos with out getting any decision?

Thanks in advance for your help.

[raghvi]

Hi,

I am working on L1B having visa/i-94 expiry date as 02/28.My company filed for extension(I129) and current status id request for evidence. My wife is working on Valid H1B. Here are my questions

What are the possible options to stay after my I-94 expiry date?

can i apply for status change to H4 now? will that affect current I129 extension process?

how soon should i apply for H4 and how many days will they take to approve it? can i stay here after applying for cos with out getting any decision?

Thanks in advance for your help.

Technically you can stay for 240 Days after your I-94 expiry while having a pending extension request, but the catch here with you will be that after I-94 expiry you will not be able to do a Change of Status to H4 in case your L1 extension request gets rejected.

You have following options:

1. Respond to RFE immediately, and upgrade to premium so that the decision comes in before your I-94 expiry on 02/28. If extension request approved its all good, but if extension request is rejected you will still have time to switch over to H4 before I-94 expires.

2. Respond to RFE at your leisure, wait for decision at normal USCIS pace which might go beyond 02/28. If extension request gets approved after 02/28 it will be good otherwise if extension request denied after 02/28 then you would have to leave US, get H4 stamped in passport outside US and return on H4.

3. If you file Change of Status request to H4 while your L1 extension request is pending you will end up confusing your status. It would be like telling USCIS that you want to be in L1 as well as H4 together which is not possible. It can give rise to lot of status confusions based on what gets approved last. Search and read last action rule

This is my opinion not legal advice.

[ramkrishna322]

Thank you very much for the reply...Have few more questions on different options ..can you please clarify me..

Let us say:
1)If suppose my I-94 extension is pending with USCIS for few more days ..can i file for H1B in 2013 lot in parallel?
2)What if my I-94 go extended at the same time my h1b petition got approved?
3)what if my i-94 extension rejected after 02/28(i-94 expiry date) .Do they consider those days as illegal stay in US? and will that impact on any of my future Visa approvals?
and the final one
4) as you suggested go for premium processing and if it is rejected apply for H4 cos.If everything goes fine with H4 ..continue to stay in US and ..can i file for h1B in 2013 quota and work from Oct 1?

[raghvi]

1. Yes you can, but your stay beyond I-94 expiry will not be considered legal unless L1 extension approved. Just because you file H1 and it is pending it doesn't grant you legal status.

2. H1 can start at earliest from 01-Oct-2013 so even if h1 petition is approved you can be on h1 status only from 01-Oct-2013. I doubt the L1 decision is going to take another 8 Months to come by. If L1 extension is approved before that you are good but if denied you will have to leave US. Also read about the last action rule. If L1 extension is approved after H1 then you should work only with L1 employer, and if H1 is approved after L1 approval you should work only with H1 employer. No one can predict which one happens last.

3. They will consider them as out of status days but not for the purpose of deportation or to determine your eligibility for fresh visa in future as you filed the extension request before I-94 expiry. Also, after I-94 expiry if your extension request is rejected, you would have to leave US irrespective whether you have a pending H1 petition or not as H1 can start only from 01-Oct-2013.

4. Converting to H4 before L1 I-94 expiry is probably the least risky route you can take to avoid out of status period and to avoid a travel outside US. But in this case you cannot work from 28-Feb-2013 till 01-Oct-2013 (when H1 becomes active ,if approved) as you would be on H4.

This is my opinion not legal advice.

[ramkrishna322]

Thank you Raghvi ..

what if:
let the extension come in normal uscis pace and apply for H1 in parallel .if extension approved well and good.If not leave the country come back on H4/H1(if approved). Now the critical part here is
getting visa stamped in India for H1/H4. will this impact on my future Visa? will USCIS consider my stay after 02/28 as illegal if i leave the country immediately after knowing the extension status? i am thinking that staying in US is legal after applying for extension for 240 days till the time you get decision whether it is approved/denied. Please clarify me here .

1. Yes you can, but your stay beyond I-94 expiry will not be considered legal unless L1 extension approved. Just because you file H1 and it is pending it doesn't grant you legal status.

2. H1 can start at earliest from 01-Oct-2013 so even if h1 petition is approved you can be on h1 status only from 01-Oct-2013. I doubt the L1 decision is going to take another 8 Months to come by. If L1 extension is approved before that you are good but if denied you will have to leave US. Also read about the last action rule. If L1 extension is approved after H1 then you should work only with L1 employer, and if H1 is approved after L1 approval you should work only with H1 employer. No one can predict which one happens last.

3. They will consider them as out of status days but not for the purpose of deportation or to determine your eligibility for fresh visa in future as you filed the extension request before I-94 expiry. Also, after I-94 expiry if your extension request is rejected, you would have to leave US irrespective whether you have a pending H1 petition or not as H1 can start only from 01-Oct-2013.

4. Converting to H4 before L1 I-94 expiry is probably the least risky route you can take to avoid out of status period and to avoid a travel outside US. But in this case you cannot work from 28-Feb-2013 till 01-Oct-2013 (when H1 becomes active ,if approved) as you would be on H4.

This is my opinion not legal advice.

[raghvi]

Thank you Raghvi ..

what if:
let the extension come in normal uscis pace and apply for H1 in parallel .if extension approved well and good.If not leave the country come back on H4/H1(if approved). Now the critical part here is
getting visa stamped in India for H1/H4. will this impact on my future Visa? will USCIS consider my stay after 02/28 as illegal if i leave the country immediately after knowing the extension status? i am thinking that staying in US is legal after applying for extension for 240 days till the time you get decision whether it is approved/denied. Please clarify me here .

iff the extension request was filed before your I-94 expiry the stay beyond your I-94 expiry does not affect your chances of future visa .

Here is what USCIS says:
What if I file for an extension of stay on time but USCIS doesn't make a decision before my I–94 expires?

"Your lawful nonimmigrant status ends, and you are out of status,when your Form I-94 expires, even if you have timely applied to extend your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after the petition is adjudicated and USCIS decides your extension of nonimmigrant status request. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for extension of status pending. Even though you are not actually in a lawful nonimmigrant status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94. Although you are out of status, you may be permitted, depending on your classification, to continue your previously authorized employment for a maximum period of 240 days while your extension application is pending if USCIS receives your application before your Form I-94 expires, and you have not violated the terms of your nonimmigrant status. You may be required to stop working, immediately, when the first of the following events occurs:
• 240 days elapses from the date your I-94 expires; or
• USCIS has made a final decision denying your extension application.

If your application is approved, the approval will relate back to the date your Form I-94 expired, and your status during the pendency of your application will then be considered to have been lawful. If your application is denied, you may be required to cease employment and depart the United States immediately. In addition, any nonimmigrant visa in your passport granted in connection with your classification becomes void. Once your visa is void, you must submit any new visa application at a U.S. consulate in your home country (not a third country, except in rare instances as determined by the U.S. Department of State).



This is my opinion not legal advice.