I-94 FAQs

Covid-19/Coronavirus applying for B-2 status

Authored on: Tue, 07/28/2020 - 03:07

Question

I came to the US on H1b in 2010. My i140 got approved in Dec 2013. I joined a new employer on 21 Feb 2020. My H1B got approved till 20 Feb 2023, But I did not receive any receipt notice for my wife and my elder son H4. My employer told me that he applied for an H4 visa for my dependents.

Unfortunately, I got laid off due to COVID-19 and my employer notified USCIS on 8th June 2020 to revoke my visa. My priority is to find a new job. But in case I do not find any job I would like to move out of the USA, I do not want to accrue unlawful days. But, due to the COVID-19 situation in India, I am scared to travel to India.

My wife called USCIS and was asked to email USCIS on lockboxSupport@uscis.dhs.gov to notify her of the receipt number of my wife and son. But she has not received any response.
I want to stay in the USA until the COVID-19 situation becomes normal. As per the Document COVID Coronavirus Converting to B-1 B-2 status.pdf on your website, I can apply for a change of status to B1/B2?

Answer

Watch the Video on this FAQ:

Covid-19/Coronavirus applying for B-2 status

Video Transcript

Reach out to your lawyers and explain to them what is happening and tell them to make sure you get copies of everything. File for your family's B-2 if your H-1 is not filed within that 60 day I-94 time. If it is filed go ahead and file another H-4 application with them. For applying for EAD under certain circumstances please click here

FAQ in detail...


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Loss of job/laid off during Covid/Coronavirus times

Authored on: Sun, 04/26/2020 - 01:39

Question

I lost job and my last date of employment with the employer is March 20, 2020. This employer sponsored H1B and also had ported GC AOS in 2018.:

1. After my last date of employment (March 20, 2020), how much time do I have to transfer H1B and I-487 to a new employer?

2. Will losing the job affect the EAD renewal in processing?

3. How would it affect I-487 application, which can become current any time soon?

Answer

Watch the Video on this FAQ:

Loss of job/laid off during Covid/coronavirus times

 

Video Transcript:

 

First of all you are in a good situation because if you have a I-485 pending then you can continue to stay even if you lose your H-1B or L-1 or any status because I-485 allows you to stay here. EAD that comes with I-485 allows you to work here and advance parole that comes with the I-485 allows you to travel. Keep in mind that all these are additional benefits to being able to stay.

1. You have 60 days or the time remaing in on I-94 whichever is sorted so in this case probably 60 days.

2. It will not.

3. By the time you are ready to deal with the I-485 you should get another employment or at least an employment offer. More...


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H-1B visa holders during COVID

Authored on: Tue, 04/21/2020 - 01:39

Question

1. Is H-1B visa holder eligible for unemployment only if laid off or even furloughed? if yes, how do we know that we are eligible?

2. Where can I check my i-94 expiration date?

3. If I now have to change from H1 to B2 due to furlough, and if I have to return back to work later with the same employer, should i have to go out of the country to change back to H1?

4. What are the effects to my H1b if I have to chose using PTO or unpaid leave or combination of both, or if I have to work just 20hrs/week?

5. If I have to apply for a H4 and an EAD, do both of them get approved at the same time? I am asking this because I wanted to know if there could be a gap in my employment after I switch from H1 to H4 waiting for EAD.

Answer

Watch the Video on this FAQ: H1B visa holders during COVID

Video Transcript:

 

1. You can definitely take the state unemployment insurance if the state law allows. 

2. I-94 expiration date is in one of the two places. If your most recent I-94 was issued upon international travel you can go online and print out a copy but if your most recent I-94 was issued within USA as a change of status  you will need to get a copy of the approval notice at the bottom of which the I-94 is attached. Your lawyer should cut it out and give it to you. They are required by law to give it to you.

3. You cannot do that.

4. Reducing the number of hours is less objectionable. 

5. They are taking a long time and they don't necessarily have to get approved the same time. Yes, there is likely to be a gap. FAQ in detail...


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Does withdrawing a timely filed application/petition with the USCIS lead to unlawful presence?

Authored on: Wed, 02/12/2020 - 00:39

Question

1. Can I just withdraw the whole petition? and go out of the country and travel back on H4
2. Will withdrawing the "Extension+Amendment" petition without responding to the RFE make my presence UNLawful for the last 11 months. (I-94 Expired Dec 2018 last year) because I worked on the client on their new address without an approved amendment?

Answer

Watch the Video on this FAQ:

Does withdrawing a timely filed application/petition

with the USCIS lead to unlawful presence?


Video Transcript

 

In amendment case there is no 240 day limit. You can keep working as long as the file is active. 240 days is only extensions without a change. If you want to withdraw and go out of the country and travel back on H-4 for  that is fine.There is no unlawful presence here and you should always respond to RFEs. Never walk away from a RFE. It red flags your case.  The government starts thinking you are trying to do sometime. FAQ in detail...



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Options to Stay in the USA After Expiration of H-1B

Authored on: Wed, 05/15/2019 - 06:31

Question

1. I am currently in H1-B more than 10 years in the USA and I have approved I-140 priority date Mar 2011 - EB2. My current employment is getting over in 3 weeks. And my current H1-B and I-94 expires in mid-August 2019. My question is if I am not able to find another job within my H1-B and I-94 expires on Mid August 2019. What are the options available for me to legally stay in the USA after my H1-B and I-94 expires? I have own house. Is there an exceptional case we can file GC EAD? <br>

2. Without a job how many days i can stay in USA before my I-94 expires using I-140?

Answer

Watch the Video on this FAQ:

Options to stay in the USA after expiration of H-1B

Video Transcript

1. I don't think you would get the tourist visa or tourist status but you can apply for it.

2. 60 days is the total time.

 

 

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I-94 expired -- Unlawful Presence

Authored on: Thu, 01/10/2019 - 22:20

Question

I am H4 dependent visa holder. My I94 expired 9 months ago on Feb 2018 due to old Passport expiration. But my visa is valid until Dec 2019. I have over stayed more than 180days >365 days. I recently realized my mistake.Can you provide the best solution for this I94 problem? Explain please.

Answer

Watch the Video on this FAQ: I-94 expired -- Unlawful Presence

Video Transcript

Under the circumstances I would certainly look into 212(d)(3) waiver. 212(d)(3) waiver is given to those people where they have become subject to unlawful presence three year or ten year bar and there is no policy reason for the government to withhold their entry on a non immigrant visa. Please consult your lawyer regarding this matter. More....

 

 

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Status Expiring During the Pendency of an H-1B extension

Authored on: Tue, 01/08/2019 - 03:51

Question

1. I have approved I-140, on 7th yr of extension and my current H1B Visa and I-94 valid with emp A until dec 31,2018 based on my latest approval I received in Nov 1st week.
I have another 1 month to apply for an extension and I am requesting my employer to apply in premium processing.

1)If my extension is applied in Premium before I-94 expiration but pending beyond my expiration date 12/31/2018,
I will be 'out of status' even though 'authorized to stay' until decision is made. Is this correct that this may affect my future H1bs in case it is denied
and attract NTA(notice to appear) in future because of my 'out of status' from date of expiration to date of denial or while leaving the country upon denial.<br>
2. Is it better if I leave the country on the last day of my I-94 expiration(Dec 31, 2018) while my H1B extension is pending in order to avoid 'out of status' or 'unlawful presence' scenarios by staying here.
If I leave the country while extension is pending in above scenario, is it possible for me to go for consular processing, get VISA stamped after it is approved and enter the US legally?
or
is h1b extension is considered as abandoned?

Answer

Watch the Video on this FAQ:

Status expiring during the pendency of an H-1B extension

Video Transcript

1. No, and there is no NTA even if it gets denied. You can leave the United States within a short period. After the denial you won't get an NTA.

2. You don't have to do that. There is no question of unlawful presence or being out of status when timely filed extension amendment or transfer request is pending and if you choose to leave the USA for whatever reasons you can always get a visa and come back. Traveling outside the USA does not abandon your H-1request. More...


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Unlawful Presence for Minors

Authored on: Thu, 11/15/2018 - 10:56

Question

My son’s I-94 and visa are expired in June. We have applied for I-539 for extension in October. Will he be granted the extension.

Answer

Watch the Video on this FAQ: Unlawful presence for minors

Video Transcript

For a child under the age of 18 until they hit 18 there is no unlawful presence. They are only out of status. More...

 



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Impact of Unlawful Presence

Authored on: Wed, 11/14/2018 - 08:59

Question

I am a LPR for 1 year. I married my wife 10 month ago. She came here on a J1 visa that expired 12 years ago and she is out of status. She never filed anything with USCIS except the I-130 9 month ago. The new policy implemented on Aug 9, 2018 for the F,J,M students and accrual of unlawful presence says that she will accumulate unlawful presence starting Aug 9, 2018. If she leaves US after February 5, 2019 she will be subject to 3/10 year bar. She plans to leave shortly before that and wait for her priority date to be current in 1.5 years hopefully. Do you think she can have any problems at the consulate interview if she was out of status for 12 years, and she accumulates close to 180 days of unlawful presence?

Answer

Watch the Video on this FAQ: Impact of unlawful presence

Video Transcript:

In your case make sure she came in with an I-94DS because if she did not have DS, then she's been accumulating unlawful presence for a while and then the only solution is when you become a US citizen, you can then apply for her I-485 without having an issue with unlawful presence because she entered legally. Please spend some time with your lawyer, go over your wife's situation in detail, learn all the pros and cons of your situation. More...

 

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H-1B and Green Card Transfer From a Non-Profit Organization to For-Profit

Authored on: Thu, 05/03/2018 - 13:09

Question

I am currently working for a Non-profit org on a cap-exempt H-1B. and my company initiated my GC processing. Below are the few questions:<br>
1. Is the GC processing any different thru a non-profit from a for-profit organization? meaning, is it any advantageous to process my GC thru a non-profit?<br>
2. Can my I-140 from a non-profit be transferred to a for-profit org, if I was able to move to a for-profit org?<br>
3. What are the possible ways that I could move to work for a for -profit organizations? From your previous calls and thru my research I found out below few ways that I could to that. Please give your inputs<br>

a. Finding a profit employer to file my cap-subject H1 (Can I start working for my new employer as soon as my H1b is picked in the lottery or approved, instead of waiting till Oct 1st?)<br>

b. If a new employer sponsor my cap-subject H1 and if I dont move to the new employer, will my current cap-exempt H1 be still active and should I have to go under the cap next time I file a Cap-subject H1<br>

c.applying for concurrent H1b<br>

d. Moving on to H4EAD and filing a H1b next April<br>

e.Joining a Masters CPT college and filing a Cap-subject H-1B next year

Answer

Watch the Video on this FAQ: H-1B and green card transfer from a non-profit organization to for-profit

Video Transcript

1. The answer is No. There is no advantage in going through for-profit or non-profit that's just irrelevant.

2. No, non-profit or for-profit does not matter you cannot transfer I-140s, you can transfer priority dates unless your 1-140 is based upon a National Interest Waiver or an EB-1A.  Your green card can be transferred once your I-140 is approved and I-485 has been pending 180 days, then it doesn't matter what the nature of the organisation is.

3. a.  I don't think there is any specific law on this issue. Technically, you can start working for them on receipt, but obviously you will only get a receipt if your case is picked up for the lottery. So if you have been maintaining H-1B status I believe you can start working for a cap subject employer as soon as your H-1 is picked up.

     b.  Absolutely. My guess would be if your H-1B cap subject H-1B is approved and it is not revoked till October 1st, I don't think you will be subject to a cap to work for a for-profit in the future. It shouldn't be revoked before October 1st and you should receive your change of employer. So in other words, you should get a new I-94 with the case because USCIS has been taking this position that just getting an H-1B approval does not put you over the top where you are safe from cap quota issues. They say unless you receive a change of status or go get a visa stamping till that time you are not exempt from the quota so you must also receive an I-94 which is a transfer of employer, but you can still continue working with the old employer.

    c.  Another way is applying for concurrent H-1B although it is a strange provision in the law where if you have a quota exempt H-1B as long as you maintain that without worrying about the quota you can also work on a concurrent H-1B for a quota employer.

    d. Moving to H-4 EAD is not a good idea because in June they are going to announce the revocation of the H-4 EAD regulations according to the court.

    e. Joining a Master's CPT and filing a cap yes, that's definitely an option.   

More....

 

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Can I Get H-4 Visa Stamping While the H-1 to H-4 Change of Status is Still Pending?

Authored on: Mon, 02/19/2018 - 03:41

Question

H1 to H4 COS pending from Jul 14 2017. I94 expired Nov 2nd. H4 to B2 applied on Oct 31 2017 as per our attorneys suggestion due to some delay with spouses visa. Spouse's H1 is now approved. I would like to get my H4 as soon as possible and apply for H4 EAD. Can I go to Canada/ any close by country and get my H4 stamping done while the petitions are pending or wait till H4 is approved? or going to India is my only option

Answer

Watch the Video for this FAQ: Can I get H4 visa stamping while the H1 to H4 change of status is still pending?

Video Transcript:

Absolutely no problem at all. You can go to any country of your choice, no harm done. Remember for H-4 stamping a prior approval from the USCIS is not needed. You walk in with your spouses H-1 approval and that's how you get your H-4. More...

 

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H-1B or Other Status Denied - What is my Status?

Authored on: Wed, 02/14/2018 - 11:26

Question

My I-94 expired on Dec 13th last year. Company filed for extension but RFE....now i will be laid off on Feb 9th and my company will not file for RFE response. How many days do i have to leave the country? Do i need to leave immediately on Feb 9th or can i leave by Feb 13th or 14th ? Will 5 days of out of status impact my future applications ? Also another company has offered me a job. If they file for H1B do they have to do it after I leave the country or can they start it and i can leave in between and do Counselor processing?

Answer

Watch the Video on this FAQ: H-1B or other status denied - what is my status?

Video Transcript

Basic Concepts to be in Status

To be in Status means you got the right kind of I-94. For example, if you are on H-1B and you have got an H-1B and I-94 which is unexpired and a proper approval from the USCIS to work for that employer at that location and you get paid and you are doing the work that you are supposed to be doing. So Status is a combination of immigration permissions as well as the work you do in the context of H-1B. In the context of F-1 it is the study that you do, so you could have an F-1 approval on paper, but you are not attending school, you are out of status or you could have an H-1B approval with an unexpired I-94 but you are not approved to work at the location you are working.

Therefore, it is a mixture of immigration permissions and the activity which is permissible and expected under the immigration permissions.

Then comes unlawfully present. This is a very complicated concept. Unlawful presence is dangerous because 180 days of unlawful presence will make you ineligible to enter the United States for three years. One year of unlawful presence will make you ineligible for 10 years. Now typically the unlawful presence begins with I-94 expiration or a finding by the USCIS or by an immigration court if you are in proceedings in deportation etc... that you are out of status and unlawfully present. That's the date your unlawful presence will kick in. This is a very complicated concept.

So when you are not doing the activity or don't have the proper legal permissions you could be out of status and unlawfully present that's the third concept and the fourth concept is authorized period of stay. This is in between status. You are allowed to stay in the United States, but you cannot convert from one status to another, from authorized period of stay to status. An example: lets say you were on H-1 and you filed for I-485 Adjustment of Status you let the H-1B expire you working on EAD you are in an authorized period of stay. If you want to go back to H-1 you cannot do a conversion or a change of status from Adjustment of Status to H-1. You can get an H-1B approval, but to get this status you have to leave USA get a visa stamp and come back because authorized period of stay is not status. 

These are very important. Please share them with as many people as you can especially in today's environment when Trump administration is in my opinion illegally denying a lot of cases. More...

 

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H-1B Visa Stamping in Canada or Mexico; Importance of I-94

Authored on: Tue, 09/05/2017 - 07:35

Question

I am currently working on H1B visa, My current visa stamping is via my previous employer (Employer A) and valid till September 2017 and my I-797 is via my current employer (Employer B) ,its valid till August 2018.
I have few queries regarding my new H1B visa stamping and I-94. <br>
1. Can I get my visa stamped in CANADA or any other country nearby to USA without revisiting INDIA.<br>

2. Am I eligible for drop box option for my new stamping as my current stamping is via my previous employer.
<br>
3. I can see also my I-94 expiring is September 2017. Do I need to reach out to USCIS to update it, in order to maintain my status.

Answer

Watch the Video on this FAQ: H-1B visa stamping in Canada or Mexico; importance of I-94

Video Transcript

1. You can get your visa stamped in any country which is called Third Country National (TCN) processing. It is a good idea to check with them beforehand. Sometimes if they have too much of a workload, especially in Mexico they might temporarily stop taking TCN's. 

2. I don't know because I don't know the rules for the drop box. If you read the rules and you qualify for them, then the answer is yes.

3. I-94 is important. Once you are inside the USA your status is governed by the I-94. You could have a visa good till 2020 but if your I-94 is expiring tomorrow then you are going to be out of status day after tomorrow and unlawfully present. If your I-94 is expiring you got to get that extended whether it is through an H-1 extension or if you already have an approval and you can go outside with the visa for a visa stamping. H-1 and L-1 visas require a prior approval from USCIS. H-4 and L-2 visas do not. More...

 

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Does H-4 Require a Prior USCIS Approval for Visa Stamping?

Authored on: Thu, 08/10/2017 - 04:43

Question

My dependents visa stamp on passport expires on Sept 1st 2017 and have valid I-94 till Sept 1st 2017 and this was with the previous employer A I worked for. I moved to a different employer B a year back and haven't filed H4 for dependents with employer B as it was not necessary. Now if my dependents travel to India prior to Sept 1st 2017, do I still need to file for H4 extension or is it good if they attend the interview at consulate in India and get visa stamped on passport without H4 extension using my approved I-797 (till 2019) with employer B.

Answer

Watch Video on this FAQ: Does H-4 require a prior USCIS approval for visa stamping?

Video Transcription

You do not need to get an H-4 extension from USCIS when you have certain derivative visas like H-4 or L-2. Those visas are given based upon the approval of the H-1 holder and the L-1 holder. For the dropbox facility, you have to look at the local rules. More...

 

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I-94 Given for a Shorter Duration at the Airport than the Petition Approval Date

Authored on: Thu, 07/27/2017 - 06:36

Question

I have an approved I-797A with company B valid till 2018 May (attached i94 with same dates). My Visa with Company A valid till 23 Aug 2017 (old passport). I got a new passport in 2015 Dec, which I have applied after moved to company B. I traveled to India in June 2016 and comeback, CBP officer gave me I-94 till 23 Aug 2017 with new passport entry, because of new passport I-94 number changed. My question is I-94 (May 2018) is on my I-797 is still valid or it will valid only till 23 Aug 2017? If valid only till 23 Aug 2017, How to solve this issue with out going out of the country.

Answer

Watch Video on this FAQ: I-94 given for a shorter duration at the airport than the petition approval date

Video Transcript

No, the government wants you to look at only the most recently issued I-94. If it is a government error, then you can correct it through CBP otherwise apply for an H-1 extension like you normally would through USCIS or go outside the USA and come back using the approval that is good till 2018. They should be able to give you a new I-94. More...

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Protection of Section 245(k) for Employment-Based I-485

Authored on: Wed, 07/26/2017 - 04:24

Question

Will there be any issue with my I-485 approval? If it gets denied, will my unlawful presence/out of status be counted from the time my I-94 expired? What should be my next steps?

Answer

Audio FAQ: Protection of section 245 (K) for employment-based I-485

Audio Transcript

1. 245(k) says if you are an employment based applicant or spouse or child of an employment based applicant we will forgive you up to 180 days of being out of status or on authorized employment since the date of your last entry. Any period accumulated before last entry we can disregard. We only count from the date of the last entry. Hence it is a very strong permission to help you file I-485.

2. 245(k) is automatically given. The government actually applies for it themselves. You don't have to do anything special for it.

3. When you are in between statuses: H-1B extension pending or old I-94 expired you are not in status enough to apply for this kind of status. But if your status expired less than 180 days ago because of section 245(k) you can file Adjustment of Status. More...


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60 Days Grace Period for H-1B

Authored on: Mon, 07/24/2017 - 04:09

Question

My Project with My Client will end soon and my employer doesn't have any further projects and asking me to go back to my home country (India) by end of this month. My Visa is valid till Aug 2017 with extension filed. So I am considering to resign on last day of the assignment. ( no new employer found yet).<br>
1) as per new Rule would I be getting the grace period till my I 94 expires i.e till Aug 2017? Is this correct? ( 60 days grace period rule) Also during this Grace period Can I apply for a Change of Status to another non immigrant Visa - F1? (change to a different nonimmigrant classification.) if yes and F1 filed after termination of employment, will this not be considered as timely filed which can result in problems in the future?<br>
2) if F1 is filed Should I start my classes before I94 expiry date or can I Start in September or should I wait till F1 is approved ( after 90 days from date of filing F1)?

Answer

Audio FAQ: 60 days grace period for H-1B

Audio Transcript

1. Let's say your I-94 was not expiring for five or six months no doubt you could lay claim on the 60 day grace period and get another extension or change of status filed during that time. If you do anything during that 60 day period unless the grace period is denied for any other violation of status you are considered to be applying within the status.

2. As long as the difference between the last day of the 60 days and the period your F-1 begins is not more than 30 days you should be ok. More 

 

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H-1B title "Programmers" and USCIS site visits

Authored on: Wed, 05/03/2017 - 05:34

Question

Brief history - 7th year on H1, 140 approved.<br>

1. Per recent USCIS memo 'H-1B for Programmers - 2017 Guidance'.... if the designation in my current LCA has 'Programmer' word, should I be changing the designation to a different one when I apply for H1 ?renewal?<br>

2. Also in the same memo, it said: "USCIS will now target employers petitioning for H-1B workers who work off-site at another company or organization’s location."
........what does that mean......between my employer and the end client there is middle vendor...is that in any way related to what's stated above?
<br>
3. My most recent H1 is via COS from H4 and is valid until March -18. I will be applying for H1 renewal 6 months before but just in case the renewal doesn't go through, can I apply for a change of status to H4 while I'm here .

Answer

Watch the Video on this FAQ: H-1B title "Programmers" and USCIS site visits

Video Transcript

1. Sure, if your job is indeed something other than a programmer. The problem is in the IT industry titles are very misleading you could have somebody called a programmer but they are doing software architecture. The job description is the most important thing. Titles matter only as pointers. Titles are not definitive.

2. Regarding site visits, they are going to target consulting companies and companies who are basically off-sitting their employees for site visits more than they would normally. Make sure you are working where you are supposed to be working, you are doing the job you are supposed to be doing at the level you are supposed to be doing. The job description should be the same as what you are actually doing and it should reflect the level of your seniority.

3. When you have a case pending it is OK to stay, it is called Authorized Period of Stay, but you don't have full status if your old I-94 is expired. More...

 

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H-1 I-94 given at the airport for a duration shorter than the H-1 approval, how to extend I-94?

Authored on: Fri, 04/21/2017 - 10:59

Question

I have my H-1 extension till 2020. I recently visited India and got visa stamped 2020 as well but while coming back as my passport validity was till Feb 2018 - I got the I94 till Feb 2018. How do I extend my I-94?

Answer

Watch the Video on this FAQ: H-1 I-94 given at the airport for a duration shorter than the H-1 approval, how to extend I-94?

Video Transcript

Let's say you have an H-1 which was good until August and you came to the airport in January and they gave you a I-94 good only till June because your passport was expiring in June. In that case, you have two options. If your passport is renewed and your visa is still good you can go outside and come back using the approval notice and the visa on your passport. You should be given the entire time remaining given in your petition plus 10 days. 

The second option is if you still have time on the I-94 that was given to you at the airport you can apply for an extension while you are within the USA. More...

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Changing employers after 6 years of H-1 are over

Authored on: Tue, 04/04/2017 - 02:22

Question

1. With my approved I-140 from Company B can Company C use that to file my extension for 3 years. I have a copy of approved I-140. Is it safe to change companies in the 6th year. <br>
2. Using the approved I-140, I have filed H4-EAD for my spouse in Feb 2017 and is yet to receive the EAD approval. If I get it will be only valid till Nov 2017 based on current I-797 validity. So, if H1-B is approved for Company C, can I file extension of H4-EAD 120 days before validity based on that approval. If EAD is provided, it is going to expire on Nov 2017 based on the H1-B's current I-797.<br>

Answer

Watch the Video on this FAQ: Changing employers after 6 years of H-1 are over

Video Transcript

1.Yes you can file for an extension. That's all you need a copy of the approved I-140. It is safe to change companies. The law is once your I-140 is approved and stays approved for 180 days, even if your old employer revokes your I-140 you have the right to keep extending your H-1 through any employer.

2. I think you can apply 180 days. The new regulations allow you to file for EAD extension 180 days ahead of time. Have it double checked. It is not a guaranteed right but USCIS has said that they will accept that unless they post it differently on their website. So always double check the information. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Carry Immigration Documents Every Day

Authored on: Mon, 03/27/2017 - 23:21

Question

We are on H (H-1B and H-4). For I-94, Arrival-Departure Record, can a printout from the web sufficient? We have US driver's licence, which we carry all the time. Do we need to carry original I-797A all the time?

Answer

You must carry the I-94 printout at all times. A photo ID is also important. The evidence of status COULD be in the forms of copies, I think. It is not required, but I recommend you do carry it.

For more on this issue watch this video.

 

I-94 Given for Duration Shorter than Entitled

Authored on: Fri, 05/27/2016 - 05:27

Question

On December 18th 2015 I came back to USA on H-4, at that time my old passport was expiring on September 19th 2015 so the Immigration Officer approved my I-94 until September 19. Later I applied for H-1 and it got approved on Feb 2nd 2016 and my H-1 is valid until Ending Validity Date: 12/19/18 with I-94 number in it. I renewed my passport now and I have validity until 2026.
Question: Do I have to go for stamping again to extend my I-94 validity? Or since I got new I-94 with my H-1B is that good enough.

Answer

Watch Video: I-94 given for duration shorter than entitled

Video Transcript: In this case there is one piece of information missing as in I do not know how long your I-94 was expired, how much is the difference between expiration of the old or the H-4/I-94 that was given to you during your last entry and the H-1 approval date beginning. So if that gap is more than 180 days you should consult with your lawyers or have a consultation with us if you like. But that needs to be evaluated very carefully because that has many ramifications. Remember errors made by CBP (Customs and Border Protection) can be corrected by just going back to the port or one of the many CBP offices all over the country. 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Gap in Status

Authored on: Tue, 04/19/2016 - 03:35

Question

A couple of questions on Gap in status:<br>

1. I am on H-1B and my project/job is going to end on April 29,2016 (Friday). I have my H-4 approved effective May 2, 2016. I will get salary slip from 1 April to 30 April. Do I need to have salary slip for May 1, 2016 (which is a Sunday) to maintain H-1B/ legal status (considering that I won't be getting May 1 to May 31 salary slip).<br>

2. I am currently on H-1B and have an approved H-4 Effective 15 July 2016. As part of my H-4 application (which I had filed along with my spouse extension) , I had requested USCIS to give me H-4 effective date of 13 May 2016 as my project was going to end on 13 May 2016. But, the request was not honoured and USCIS responded citing the reason "Since the beneficiary of the I-539 and I-765 will change status, we cannot give an earlier start date than what is shown on the I-129 approval notice." If my project ends on 13 May 2016 , should I leave the country as my H-4 effective start date is 15 July 2016 to maintain legal status ?

Answer

Watch Video: Gap in Status


Video Transcript:

Answer 1: These kinds of de minimis small gaps are sometimes  even a product of the way the government works. In your case I don't think it is going to be a problem. Technically yes even for one day being out of status the government can say you are out of status, but when they have already approved your status I don't think this is going to be a major issue. 

Answer 2: I personally think it is still not a big issue because  if you got the H-4 already with an I-94 attached I doubt if the government is going to make an issue out of it. But you can do another thing. You can file a tourist visa to cover you for those two months but make sure it does not go beyond July 14. Other wise your status will be changed to B. So you could do a stop gap kind of arrangement or you could leave USA for a couple of months. But even if you stayed I doubt whether it is going to be an issue. 


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-1B Laid Off Issues

Authored on: Thu, 11/12/2015 - 09:15

Question

I have been laid off by my current employer, with severance paycheck coming at regular pay intervals until mid January-2016. Finding a new employment is taking time. I am on H-1B which first started on October 01, 2013, latest I-797 valid until December 2017. <br>
1. How long do I legally have, before I become unauthorized to stay? What constitutes as unlawful presence?<br>
2. My I-94 admission validity is until October 2016; with no employment, does this mean anything?<br>
3. Before I transition into a new H-1B, can I travel outside and into the country, without a Change of Status? Can I use severance pay checks if asked, for entry purposes?<br>
4. Can I use my severance pay stubs as pay stubs when my next employer applies for new H-1B?<br>
5. I am hesitating to inform my next employer about my termination, thinking that this may impact my hiring decision or my ability to negotiate. But not indicating terminated employment, is it possible that my H1B transfer or new petition may be considered unethical?<br>
6. In your experience, how long does the USCIS take to update a revoked H-1B petition in their systems?<br>
7. If my new employer files for H-1B transfer before the update but with pay stubs older than 30 days, do I have to mandatory leave the country for new H-1B stamping before starting to work?<br>
8. If such is the case, is it best to change to a B-2 status and have my next employer apply for new H-1B? If yes, I would assume that I will be cap exempt until September 30, 2019 plus the days spent on B2; would this be a fair assumption.<br>
9. Can my employer continue to pay severance checks when I am on B-2 status?<br>
10. What happens if my new employer applies for H-1B transfer with severance paychecks, after USCIS has updated their records?<br>
11. In your experience, what gap in unemployment is generally ignored by USCIS when filing for new H-1B or transferring new H-1B?<br>
12. What other words of wisdom do you have for me?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.

https://youtu.be/F0YZD8zWm88?t=1068&nbsp;

FAQ Transcript:

If you get laid off on H-1B there is no grace period. You get laid off today tomorrow you are out of status.

Answer 1.  Not even one day. However when you are getting paid can you not make the argument that since you are getting paid you are still maintaining status. That’s a slightly unpredictable argument. It can cut both ways. An example: I did a consultation on garden leave. Garden leave is very common in the financial industry. The employer lets you resign or if they lay you off they will pay you for the couple of months but they don’t want you to join another employer. The idea is you should not be able to take their information which is current and apply to a competitor. So in that case those pay checks are strongly set to keep you in status because it is full salary and they are maintaining control over you and they are not letting you do what you please . And that’s the assumption.

However severance pay… government has at one point said that they don’t consider severance pay to maintenance of status because severance pay seems to be a part of an arrangement were this is not salary you are basically just getting paid sought of a bonus to part company and I have doubts about that . I do not believe that to be a very good legal opinion from the government.  I feel as long as my salary amount is getting paid, my deductions are being made, it is does not matter if I have a job or not. So you can certainly argue that. Severance pay doubtful, something like garden leave or regular leave coming out your way is probably ok to maintain status.

Answer 2.  Not really. Understand the difference between out of status and unlawful presence. These are two different concepts. If you are on H-1 and you get laid off you are out of status the next day. But you are not unlawfully present until your H-1 is revoked or until your 1-94 expires. For sure unlawful presence begins when 1-94 expires. So unlawful presence and out of status are two different things. You are out of status the following day but you may not be unlawfully present until you’re I-94 expires or revocation of the H-1 occurs. Consequences of being out of status and unlawful presence are quite different. You are out of status that is no bar from getting another H-1B visa, another H-4, L-1, L-2 maybe a problem for F-1 or B-1 visas that have rather weak basis but for H-,4 H-1, L-1, L-2  or even O-1 or E-3 this is not a problem. On the other hand if you are unlawfully present for 180 days you are barred from green card or work visa for three years to ten years if you are unlawfully present for one year. So you can’t come back without a waiver and waivers are limited.

Answer 3.  No because you don’t have a job. If you use the same visa to come back in, that could be fraud.

Answer 4.  The answer is yes and why not. Government has never made a formal announcement that they will not accept severance as indicative of violation of status. So definitely use them.

Answer 5.  That’s between you and your new employer. Immigration law does not require you to inform your new employer about termination by the old employer. 

Answer 6. It can be many months but revocation should be retroactive so if your employer sent a revocation request which reaches USCIS today even if they act on it three months down the line they will back date it to today. Revocation is effective on the date revocation request is received.

Answer 7.  It is up to USCIS, they might allow you status if the facts of your case is such that they require some sympathetic consideration but normally if you are out of status even one day government is  well within its right to refuse to issue you status within the country. In these cases I always advice people to file premium processing soon so you know rather quickly were you stand.

Answer 8.  B-2 application to maintain status is acceptable sometimes and also objectionable by the government. You can try, you can tell them that you were laid off unexpectedly and you have enough money to support yourself and you will not work without authorization, and that as soon as you find another employer you will immediately apply for an H-1. When all these things are said and done I think you can make a case for a B-2.

Sometimes government has come back and said we cannot give you a B-2 but as long as you get it filed before your current H-1 expires at least you have the right to stay in the US.  You can argue in what is called authorized period of stay. But the problem is this. Something you need to be aware of. Let’s say your status is expired you have filed for B-2 and it is pending now you found a job remember an H-1 transfer within US will be approved only (most cases) if the pending B-2 has been approved in your favor by the time USCIS decides the H-1 transfer. If the case is still pending they will not give you status within USA, they will ask you to go for visa stamping. That is not a problem. You can do that but be mindful of that. If the B-2 is still pending or the B-2 is denied you will have to leave USA. The only time you get H-1B within USA is if by the time they decide your second H-1and your B-2 is already approved in your favor. 

You will be cap exempt. That is not a problem because cap just says if you have been approved anytime in the last six years you are not subject to the quota.

Answer 9.  Why not. On the one hand we are arguing that’s keeping you in status. On the other government could take the position that means you are violating status and I would say “no” because that is payment for work already done. They are giving me severance not because I am working for them; it’s because I already worked for them and this is either a payment for work already done or part of the arrangement while I was working.  In order for employment to be unauthorized there must be a payment or remuneration as well as work.  If there is payment without work or work without payment I think that is a good argument that’s not an unauthorized employment.

Answer 11.  There is no consistency.  I have seen them ignore not even one day they will come back and say no you were out of status for one day, in some situations they have done  for two or three months. Most of the times they are not tolerant of this issue at all. 

Answer 12. I think B-2is a good idea as long as you understand the implications of a B-2.

Correcting dates on I-94

Authored on: Mon, 10/26/2015 - 05:04

Question

My current visa H-4 VISA is valid till Nov 25 2016.<br>
- I had applied for an change of status/extension of stay (I539) for H-4 status to July 4 2018 (through underlying H-1 extension).<br>
- I had to travel to India while it was pending. USCIS issued an I-797 - Approval for the extension of stay without abandoning it.<br>
- At the port of entry, the I-94 expiry was marked as Dec 25 2016.<br>
- The expiry date does not jive with the original VISA expiry date Nov 25, 2016 that was presented at the time of arrival. Nor does it reflect the I-539 extended date of July 4 2018 (that was not presented at port of entry).<br>

Please advise -<br>
a) What action would I required to correct I-94 expiry date? Who do I contact to correct it?<br>
b) I am filing for a I-485 adjustment as a spouse of EB-3, The forms require to put the status expiry date. Is it OK to use the more conservative Nov 25 2016 date even though I-539 has been erroneously approved till July 4 2018?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/ZvUVIGTM-Kk?t=705

FAQ Transcript:

This is a recurring issue, so first of all I want to address the problem and the possible solutions or the lack of solutions. Often times we have a case, we have a case working on right now actually. This lady entered the US on H-4 visa which was good for let’s say till 2017 but her passport was expiring in 2016 or 2015 She comes in and Customs and Border Protection gives her  I-94 only till the date of her passport approval. And sometimes they do that; they will give it to the extent of visa approval, which is incorrect. Your visa could be expiring earlier than your approval. They should still give you the I-94 all the way to your approval not till your visa. In this case they gave it  only till 2015 and she is been here over a year now in unlawful presence not realizing that she has been given less stay than 2017.

So, this is a very complicated issue or problematic issue. They will correct the mistakes they have made.  If they have made a mistake giving you a wrong date or giving you the date till visa not the approval date, you can actually go back to the CBP at the airport or any of their offices or nearby posts. They have lists of them at www.cbp.gov website and you can ask your I-94 to be corrected.

But there are certain things they don't consider them as errors, such as approval till the passport expiration that cannot be corrected. Then the question is what do you do then?

You have two choices; either you can do the extension of status or current status by filing the form I- 539 or I-129, if you are H-1, L-1 holder. For H-1, L-1 they do it all over again as new case. For H-4 it’s less complicated or simple or you can step outside USA, showing your visa and comeback  and receive your I-94 approval. But if your I-94 is already expired, you must speak with your lawyer before you leave. You could very well subject to the bar which comes from the unlawfully present.

So, in this case what happened is the person who has the above question traveled to India while change of status for H-1 to H-4 was pending.

Now USCIS should have declined change of status because they left US, came back received I-94 good till December 2016. The visa expiration date is November 2016, which is what I gave at the airport he says. 

What action would I required to correct I-94 expiration date?

Look you can go back to the CBP, make your case that you have made an error, I don’t see the error. If anything they have given you is more time not less and because you traveled abroad while your change of status was pending , that approval is really not  worth anything. That’s the mistaken approval.

I am filing for a I-485 adjustment as a spouse of EB3, The forms require to put the status expiry date. Is it OK to use the more conservative Nov 25 2016 date even though I-539 has been erroneously approved till July 4 2018?

I would use the date which they have given you in I - 94 and I would attach an explanation saying that this date maybe incorrect but you don't know. According to your calculation it should have been November 2016.

I always like to make full disclosure to the government, so that they don't come back and create a problem with the discrepancy. 

Travel while H-1 extension pending – change in I-94 number

Authored on: Tue, 10/20/2015 - 08:19

Question

I had applied for H-1B extension on May 15, 2015 with I-94 card expiring on Aug 29,2015. Due to some emergency, I traveled to India in June and returned in July with new I-94 card expiring on Nov 2015. Now, it's been 6 months that I applied for extension, no response from USCIS. Will there be any problem since I filed my H-1B extension with old I-94. Do we need to amend my case with new I-94 card?

Answer

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/ZvUVIGTM-Kk?t=1245

FAQ Transcript:

If you file for your H-1extension you are allowed to travel. You are allowed to travel even when your H-1 transfer is pending. A few things to keep in mind when you do - is are you maintaining status etc etc., but travel while transfer or extension of  H-1 is pending is allowed. The question is when you come back your I-94 changes and that is not a problem. That should not cause any delay and I don't see any need for any amendment. The fact that your H-1 is taking so long is most probably not related to this issue. But if you want you can double check with the USCIS customer service. I always advice that. 

I-94 Admission Record

Authored on: Mon, 01/05/2015 - 04:14

Question

How does a traveler revalidate a visa without their I-94?

Answer

The I-94 admission record is created electronically and maintained in CBP systems. CBP will verify the I-94 electronically to re-validate an expired visa if the traveler meets the conditions of automatic revalidation. In order to demonstrate eligibility for automatic revalidation, a traveler may be required to present a copy of the website printout to the air or sea carrier prior to boarding. If entry occurred prior to automation, a paper form must be presented in order to comply with validation requirements. For more information about automatic revalidation go to http://www.cbp.gov/document/bulletins/automatic-revalidation-visas.

Locating I-94 Online

Authored on: Mon, 12/02/2013 - 02:32

Question

I can't locate my I-94 online. What should I do?

Answer

If you tried to retrieve your I-94 from the cbp.gov online system and you receive a response that your I-94 is "Not Found", please read the following questions to help you check for mistakes and try to enter the information again:

1. Did you enter your first and last name the same way it appears on your passport?  Please do not use dashes or titles.

2. Did you enter the passport number that appears on the upper right hand side of your passport?

3. Did you enter your country of citizenship (country that issued the passport, not where you currently live)?

4. Under Class of Admission, did you enter the visa classification that appears on your U.S. visa OR, if you are traveling under the visa waiver program (VWP) enter WT/WB?

5. If you entered your first and middle name and it is not found, try one name or the other.  Also try entering your first and middle name in the first name box.

6. Try entering either your most recent date of entry or your original date of entry into the U.S.

If you still cannot find your I-94, please contact your nearest* Customs and Border Protection Deferred Inspection Site and a CBP Officer will be able to assist you.

*When you open the link to the Deferred Inspection Site, you will find an alphabetical list of locations within the United States. 

Note:  Asylees and refugees should have received a hand written or stamped I-94 upon entering the U.S. and will not be able to retrieve I-94 information online.

Information on Printing I-94

Authored on: Tue, 10/01/2013 - 07:46

Question

I do not have an I-94 from my last entry to the US in June, but I need it for my H-1B renewal. What should I do?

Answer

Please refer to the following link for information on printing your I-94: http://www.immigration.com/news/general-nonimmigrant-visa/i-94-web-appl…

I-94 Corrections

Authored on: Thu, 12/06/2012 - 01:37

Question

Whom should we contact in the case of an erroneously issued I-94 cards, i.e., incorrect expiration date such as when the expiration date matches the visa expiration and not the I-797 approval notice? How do we reach this person? Which Ports-of-Entry (POE) may correct such a card?

Answer

U.S. Customs and Border Patrol (CBP) indicates that, if an I-94 has an error, any POE can correct. If I-94 expiration date is based on the limitation of the travel document (i.e. passport expiration date), then this is not an error that will be corrected.

Unlawful Presence

Authored on: Wed, 12/05/2012 - 00:24

Question

If a Canadian does not have a Form I-94, does he not accrue unlawful presence until there is a finding that he violated the terms of his nonimmigrant alien status? Is the burden is on CBP to establish such a violation occurred?

Answer

U.S. Customs and Border Patrol (CBP) indicates that the mere fact that there is no I-94 does not determine whether or not an individual overstays. Moreover, an individual who is admitted as a B, but does not receive an I-94 either on the southern or northern border is in a legally materially different status than an individual who is admitted as duration of status. Canadians accrue unlawful presence irrespective of whether they have an I-94.

H-4 extension for spouse and child

Authored on: Tue, 12/20/2011 - 22:21

Question

We had applied for H-4 extension for my wife and child (1 year) in same I-539 form. We received an approved 797 form for dependents. Applicant's name is my wife's name and beneficiary's name is my daughter’s name. The I-94 in the form contains only my daughter’s number and not my wife's I-94 number. My wife's name is mentioned as a petitioner. Should my wife also have a separate I-94 in the approved 797 form?

Answer

She must have a separate I-94.

I-94 Extension Time

Authored on: Fri, 11/04/2011 - 04:19

Question

I have a L1-A VISA through company Blanket. I have visa up to 2013. But my blanket expires in 2011-dec. I got I-94 up to Dec-2011. I have already applied for I-94 extension. How long will it take?

Answer

It can take a few months. You can apply for premium processing even when the case is filed and pending.

Have valid L-1 Visa, but I-94 expires

Authored on: Mon, 06/13/2011 - 07:00

Question

I have valid visa till 2013. Last year when I came to US, my passport was about to expire in Dec'2011 and hence I got my I-94 till Dec'2011. Now I have renewed my passport. At the time of entry, the officials said I can apply for extension once I renew my passport. I saw your previous comments "legality of stay in USA is governed by your I-94, not the visa." So my question is how to do L-1 extension?

Answer

Two choices: Leave USA and reenter using your L-1 visa or re file your L-1 with USCIS for extension.

L2 EAD Renewal based on I -94

Authored on: Thu, 04/08/2010 - 16:28

Question

Below are the validity dates of my L2 Visa,I-94& EAD:

L2 Visa Expiration Date: 18JUL2010
I-94 : 06MAY2011
EAD expiration date: 02OCT2010
I would like to apply for EAD renewal on June 4th, 2010 [120 days before EAD expiration]
Since I & my husband have I-94 valid till May 2011, my husband's company is planning to extend L1/L2 visas next year. Will my EAD renewal process have an impact with L2validity? As per my understanding, since I would remain on valid L2 visa after 18 July,2010 for 7 months[till I-94 expiration] can I renew my EAD without necessarily extending my L2visa.

Answer

Visa is irrelevant for status in USA. Look to your I-94 only. I dont see why you cannot renew EAD till I-94 validity. Since this matter is important, do double check with the company lawyers.

Nufield Memo-Are you deportable even if in valid AOS/I-485 pending?

Authored on: Mon, 07/06/2009 - 09:57

Question

I have a question on the new very scary and confusing interoffice memo (May 6, 2009) that the acting associate director of USCIS issued regarding unlawful presence. I am currently on EAD/AP since the expiration of my 6 years of H1-b visa on september 3, 2008 with my I-140 approved and my I-485 (PD-october 2, 2004, EB2) pending. According to the example 2 (page 10) of this memo-, anybody with an expired non-immigrant visa is subject to deportation even though his I-485 was filed properly when that person was in proper non-immigrant status and the petition is still pending. My understanding was that once an AOS is filed, I am authorized to stay here and work on EAD and go in and out of USA on AP until that petition is denied. When did this law change?

Answer

That example does not make any sense. It appears to be more a clarification of a concept - NOT practice. Do NOT worry. You are fine. If someone has not already done so, I will write USCIS next week after reviewing the entire 51 page memo carefully. Do NOT lose sleep over this.