Did not get the I-94 with H1B Extension

[Unbelievable]

Hi,

 

I have changed the employer recently. I got the H1B approval but I didn't get the I-94 with it. I got the below note from the USCIS. My employer is suggesting me to go outside of US and come back as I have stamping valid till  SEP 2016. Please suggest me the best ways.

 

This notice IS in reference to the Form 1-129, Petition for Nonimmigrant Worker, you filed in behalf of 

 

XXXXXXXXXX seeking specialty occupation worker classification under section 101 (a) (15) (H) (i) (b) 

 

of the Immigration and Nationality Act (INA) with concurrent request for extension of stay. 

 

It is ordered by the Director of the California Service Center, United States Citizenship and Immigration Services 

 

(USerS) that the extension of stay requested for the beneficiary be denied for the following reason(s): 

 

The petitioner filed Form 1-129, Petition for a Nonimmigrant Worker, for the beneficiary with a request for 

 

extension of his or her nonimmigrant status as an H-l B alien performing services in a specialty occupation. 

 

Title 8, Code ofFederal Regulations (8 C.F.R.) 214.1 © (4) states that: 

 

An extension of stay may not be approved for an applicant who failed to maintain the 

 

previously accorded status or where such status expired before the application or petition was 

 

filed ... 

 

The beneficiary's prior H-IB status with his previous employer was valid from XXXXXXXX to XXXXXXXXX. Subsequent to the filing of the petition, users issued a request for evidence (RFE) requesting, among 

 

other things, evidence that the beneficiary has been maintaining his nonimmigrant status throughout the 

 

previously approved validity period. More specifically, users requested evidence of the beneficiary's pay 

 

records for the period from January 1, 2014 to the present. 

 

In response, you only submitted the beneficiary's payroll records with his previous employer for the period 

 

from XXXXXXX to Xxxxxxxx. You also submitted the beneficiary's 2014 Form W-2. 

 

According to the submitted W-2 and pay records, the beneficiary only earned $32 ,640 in 2014. However, the 

 

beneficiary's previously approved petition filed by the beneficiary's previous employer, YYYYYYYYYYYYY, 

 

indicates that the beneficiary's wage is $60,000 per year . As such, without any other evidence and/or 

 

explanation, the evidence is insufficient to establish that the beneficiary has maintained his H-l B nonimmigrant 

 

status throughout his stay in the U.S. because the beneficiary only earned a little more than half the wage he 

 

should of earned. 

 

The beneficiary has failed to maintain his nonimmigrant status and is therefore ineligible for the requested 

 

extension of stay. Accordingly, the request for extension of stay is denied. 

 

Please note that the approved Form 1-129 petition for classification of the beneficiary as an H-1B nonimmigrant 

 

has been forwarded to the U.S. Consulate in Mumbai, India as requested in Part 4 of the Form 1-129 for visa 

 

processing.

 

Thanks Inadvance,

 

[jairichi]

So what do you want to know? Why no I94? Isn't that clearly mentioned? Since you were never paid the salary mentioned in LCA you were out of status and an I94 can not be issued. File a complaint against old employer with DOL for not paying your salary and based on that get all your salary dues.

[Unbelievable]

I would like to know, am I need to go outside the US and re-enter or Do I have any other alternative solutions?

[rahul412]

You need to file a complaint against that employer, you might be visa now but you will be in trouble in future for not getting paid. So file a complaint against that employer.

[rahul412]

I would like to know, am I need to go outside the US and re-enter or Do I have any other alternative solutions?

There is no another way, you need to re-enter US to get new I94.

[jairichi]

I would like to know, am I need to go outside the US and re-enter or Do I have any other alternative solutions?

First you cannot start working for new employer without I94. As suggested file a complaint against previous employer with DOL. Based on the complaint new employer can file a cap exempt H1B petition to get I94. Alternatively, exit and enter with a valid H1B visa and I797 to get I94.

[Unbelievable]

I just want to know whether am I need to go for Stamping in India or not as I have visa valid till 2016 Sep. If I come back to US with the Ex- Employer visa, is there any issue at the port of entry?

[rahul412]

I just want to know whether am I need to go for Stamping in India or not as I have visa valid till 2016 Sep. If I come back to US with the Ex- Employer visa, is there any issue at the port of entry?

No need of new visa, if your current one is still valid.

[jairichi]

I just want to know whether am I need to go for Stamping in India or not as I have visa valid till 2016 Sep. If I come back to US with the Ex- Employer visa, is there any issue at the port of entry?

Use the valid H1B visa and new employer's I797.