I94 expired , I797 still valid

[Vmeh]

Hi guys

im in bad situation and really stressed out. My i94 expired along with my passport in February 2019. I got my passport renewed before it expired but I didn’t realize my i94 has expired until 2 days back . I have few options here 

1. Go to Sandiego , PedWest USA and get a new i94.

2. File H1B extension with NuncProTunc. 

My employer is insisting on going to sandiego PedWest. But if the officers at PedWest tell me to go to Mexico side and come back should I do that? I still have an i797 that is valid until August . 

Please advice or share your comments if you have had your i94 expired and got a new one .

 

 

[xTDx]

Both very risky, (1 being less risky than 2) . POE officer at San Diego may not allow you to enter US. NuncProTunc is a discretionary process and USCIS has no obligation to approve it. I suspect that your visa is already automatically revoked due to overstay.

IMHO you should depart US and apply for a new visa and come back. Your employer should file a extension anyway as existing one is expiring in August.

[solution]

There are few ways to get new I-94. Your old I-94 is expired with your passport expiry.  USCIS and CBP both have sometimes similar and sometimes different views on this. Recently my friend who had same issue talked with CBP deferred  inspection site officer in San Diego CBP office. She told that they won't issue new I-94 because they have done right thing of giving I-94 till passport expiry, but when he asked that is he in the status or out of status, she told him that he  was in the status because he have valid I-797 approval notice and told him  to file I-539 or I-129 to get new I-94.  There was other person on this forum.  He had same issue and he went to San diego CBP office and they told him to cross the border and come back and they issued him new I-94. So CBP officer are  very knowledgeable of this fact pattern at least in San diego CBP office. You can call San diego deferred inspection site office and ask it yourself before going. I am not sure if CBP office elsewhere in the county will take the same view.

If you file nunc pro tunc, USCIS officer might approve or might not approve. It is a discretionary thing. They might give you I-797 A i.e. with I-94 or I-797 B i.e. without I-94. If they issue I-797 B then you have to go outside the country and apply for visa at the consulate.  There in DS 160 form when they ask you have you  done anything to violate your status? You have to say yes as you were out of status for over 2 months or so. It will then depend upon the visa officer to give you visa or not. So this is a risky option. 

Crossing the border will be the safest option as you are not over 180 days and there is no Bar on your reentry.  Make sure that you don't cross 180 days without I-94. 

Hope this helps.

[xTDx]

16 hours ago, solution said:

she told him that he  was in the status because he have valid I-797 approval notice and told him  to file I-539 or I-129 to get new I-94. 

You don't stay in status if someone (Even cbp) says so. Status is dictated by i94 (not i797) which is expired for OP. OP is out of status...period. Anybody tells you otherwise doesn't know what they are saying. 

[siril]

This happened to me 06/18/19. The CBP office used my old H1B with an expiry date of 09/2018 [ i94- had an expiration of 09/2018] and not my new H1B which should have been 09/2019. I should have checked  online. My attorney was filing for H1B extension and noticed the discrepance on 06/18/19. When he contact CBP , the first response was that they would not correct it. He then send additional information with what impact it would have , if they do not correct it on 06/19, and with in few hours CBP updated with correct date.  

Edited June 19, 2019 by siril