I-94 expired; Cannot adjust status currently! Please help!

[gk333]

I spent quite a bit of time looking at all the threads in I-94 and wasn't able to find any case that was even remotely related to mine and hence started a new thread.

Nov 2016 - H1 transfer to new company approved.

Jan 2017 - Started with my new employer with the approved I-797

June 2017 - Traveled out of the country and upon arrival, CBP officer stamped the expiration date on my I-94 to be Aug 2017  ( which was the expiration date of the H1 B visa pertaining to my old employer that was stamped in my passport at that time.) I did carry my I-797 approval but don't remember if I presented it to the officer then.

Nov 2017 - My wife's employer filed for I-485 based on EB1 I-140 approval along with application for EAD AP cards for travel and work authorization. They missed/overlooked this expired I-94 during the filing process as well. 

Mar 2018 - We received our EAD AP cards.

July 1 2018 - My passport expired and I had already applied for a new passport in April and received it. 

July 2 2018- My employer's attorneys realized that my I-94 had expired almost an year ago. Upon their recommendation, I went to the CBP office to get it corrected and they refused. 

Meanwhile, my wife spoke to her attorneys and they also acknowledged that they missed it during 485 application. My firm's attorneys did not know about the EAD AP through my wife. When I told my attorney about the EAD, they told me that my I-485 will not be approved. My wife's lawyer suggests that we file NPT to correct the I-94 date. My lawyer thinks that there is a lower risk if I went to India and used my current I-797 and get a new visa stamped and re-file my I-485 again.

Which among the above two options is less risky?

My lawyer sent me a recent USCIS memo from June 28 2018 stating that anyone whose immigration petition is rejected is subject to NTA (Notice to appear) and then they will initiate removal proceedings. But since I have the I-485 pending and also an EAD AP , I should not be subject to NTA. Is my understanding correct? 

I understand that I have made a huge mistake of a) not presenting the I-797 when I came back in June 2017 and also not checking the I-94. In addition , when we filed for the I-485, I assumed( another big mistake) that my wife's and my lawyers are tracking my status. I did not know the importance of I-94 until all of this came up. I have had a clean immigration record until now. I did a lot of research but I am not sure what all documents/evidences should one present to put up a really strong case for NPT? What evidences and documents can I submit to justify the case and explain my extraordinary circumstances?

I will be very grateful for any help/recommendations. 

Thank you.

 

[gk333]

Senior Members/Gurus,

Any suggestions/advice will be greatly helpful.  

[pontevecchio]

There is the concept of a period of 120 days when the status is tolled prior to filing for AOS. You could be in a heap of trouble as the status since the I94 expired adds up. The forum is not a place to get guidance. 

This is the time to decide whether your lawyers are good enough with enough experience or get another opinion say from the firm of Murthy or any of your choice. Your wife is fine. Worst case may be 3 years away for you. I suspect you may be fine. Keep us informed.

[gk333]

@pontevecchio Thank you for the reply. Yes , I understand the case is complicated and all solutions have certain degree of risk. After consulting with a few lawyers, we have decided to file NPT.  What type of evidence will help present a strong case for NPT?  My lawyers are working on providing hardship letters from my company's perspective and I am working on a letter explaining the hardship to my family and myself due to this situation. 

Is there any other kind of evidence that we can provide? I will keep you guys posted on my progress and outcome.

Thanks for the help! Appreciate it. 

[worknyc]

I am in same boat. My I94 is expired and its more than 180 days and currently i am out of status and company applied for NTP process. USCIS approved h1b extension without I-94 as a consular process but denied the EOS. I would like to know

1. whether i can go for visa stamping or not.

2. if visa is approve can return to US? or i will be barred for 3 years ?

Thank you.

[JoeF]

If you leave without NPT approved you would have a 3-year ban.

[worknyc]

Thanks for your help.

My NTP petition is partially approved. H1b extension is approved but EOS denied. Even i will barred for 3 years?