H1 petition approved but out of status. Need advice.

[rrv]

Hi All,

 

Please bear with me for the lengthy post as I wanted to give detailed explanation about my current situation. I will start with the complete background of my case.

 

1. I got my visa stamped in 2013 through employer ABC and the visa was granted until 30-Sep-2015. My dependants too got their H4s as we all went for stamping together. Hence we didn't need any seperate H4 approval document.

2. I resigned from ABC on 01-Mar-2014 as I was considering an employment offer from another company XYZ.

3. So, ABC revoked my H1 immediately effective from 14-Mar-2014.

4. However, by the time I resigned from ABC, I made sure that XYZ had already filed an H1 petition and was also approved effective 06-Mar-2014.

5. But, after a series of negotiations with ABC, I chose to stay back with ABC and hence ABC also filed an H1 ( ammendment ) petition requesting for extension of stay. The petition was effective from 28-Apr-2014.

6. As I chose to continue with ABC, XYZ revoked the ( approved ) H1 petition effective 05-May-2014.

 

So you can see that, though my original h1 was revoked by my employer, I always held an approved petition at any given point of time.

 

Now here is the problem: When ABC filed the petition after I continued with them, they missed providing the copy of H1B petition approval that I had from XYZ. So, USCIS saw that there is a gap from 14-Mar-2014 ( when my first H1 was revoked ) to 28-Apr-2014 ( when ABC again petitioned second time ). So, they dervied that I was in the country for more than a month and 2 weeks without any status and hence decided that I have broken the non-immigrant laws and hence am "out of status". The letter says that the beneficiary ( i.e me ) is left with no status and hence has to leave USA. Ironically, though they decided that I am "out of status", they approved the second petition that ABC filed on 28-Apr-2014 i.e there was no I-94 on the approved petition. So, technically, I have an approved petition but out of status and should leave the country.

 

My questions:

 

1. The letter from USCIS says that the H1B approved petition has been forwarded to the Consulate in Hyderabad. Is it still ok to choose Jamaica as the consulate office on DS-160 and go for stamping, if stamping is mandatory?

 

2. My original Visa stamping is valid until 30-Sep-2015. The recent USCIS letter says that I have violated Non-Immigrant rules and have stayed for 1 month and two weeks without any status. Questions regarding this:

 

(a) When USCIS says I am "without status" and asks me to leave the country immediately, am I right in assuming that it also means that my family ( dependants ) are also without status and should leave the country as well?

 

(b) Does this mean my H1 original Visa is no more valid?

 

© If the Visa is still valid, can it be used to re-enter US without a need to get a new visa stamped? In this case, can I just step out of the country ( to say Jamaica ), roam around there for a day, fly back to USA, get a new I-94 at port of entry and re-enter into US?

 

(d) If the Visa is no more valid, am I correct in assuming that I should get a new H1B Visa stamped on the passport corresponding to the latest H1 approved petition? If so, will it be OK if I alone step out of country and get a new H1B Visa stamping? Or should my whole family ( H4 dependants ) get new Visas stamped to avoid any kind of discrepancies in future checks? Please note that my family doesn't have any separate H4 approval document, except for the original H4 visa stampings.

 

Thank you for the patience and awaiting your replies.

 

[jairichi]

You and your dependents can exit and enter US with a valid H1B and H4 visa respectively and new I797. No need for visa stamping. Whichever border is close you can just cross the border and enter with above said documents.

[rrv]

You and your dependents can exit and enter US with a valid H1B and H4 visa respectively and new I797. No need for visa stamping. Whichever border is close you can just cross the border and enter with above said documents.

Thank you @jairichi.

I have done the same. I crossed the border and re-entered into USA by getting my status validated and renewed at the Port of Entry. I successfully got my new I-94. But I didn't take my dependents along. I wasn't sure if this is correct, so I wanted to test my luck alone instead of troubling my family in worst case. Do you think I should do the same to my family again? Once I got my status validated and renewed will not fix my dependents status too?

[rrv]

You and your dependents can exit and enter US with a valid H1B and H4 visa respectively and new I797. No need for visa stamping. Whichever border is close you can just cross the border and enter with above said documents.

In addition to my earlier question in the comment about the status of my dependents, I should also tell you that my dependents never applied for any extension since we all entered last year. All the concerned employees involved in the chain only applied for H1 petitions and only my extension of stays ( as their H4 VISAs are valid until next year ).

[jairichi]

Thank you @jairichi.

I have done the same. I crossed the border and re-entered into USA by getting my status validated and renewed at the Port of Entry. I successfully got my new I-94. But I didn't take my dependents along. I wasn't sure if this is correct, so I wanted to test my luck alone instead of troubling my family in worst case. Do you think I should do the same to my family again? Once I got my status validated and renewed will not fix my dependents status too?

I doubt it will fix their status. Talk to your attorney,

[jairichi]

In addition to my earlier question in the comment about the status of my dependents, I should also tell you that my dependents never applied for any extension since we all entered last year. All the concerned employees involved in the chain only applied for H1 petitions and only my extension of stays ( as their H4 VISAs are valid until next year ).

It is not their visa that matters. Their I94 validity. If their I94 has expired then their stay is illegal. Check and talk to your attorney asap.