AOS applied and H1B approved but asked to go to India for stamping and comeback

[Hima712]

Hi,

I have a very strange case.

I applied for H1B trasfer from company A to Company B.

USCIS rejected my H1B and company B appealed for it and then applied a new H1B again.

Mean time my Husbands company applied for our AOS and we recieved the notices.

Then the new H1B got approved, but I-94 is not there and they asked to leave US to get H1 stamped from India.

I am waiting for my AP/EAD, I got my fingre printing dates.

But now my question is am I legal to stay in US?

If so then on which status I am statying? Since my H1B got approved but they say in that the Extension of status is denied and will allow me on H1B after getting H1B stamping from India only.

I am totally confused whether I am leagal stay or not.

If I travel now out of the conutry then will my AP/EAD will become a problem?

Pls kindly advice me on my status.

Thanks,

Hima

[cap-gap]

if u do not post all the necessary info.(ur H1B/I94 expiry date), denial date/appeal stauts, u can get a correct reponse..

with the info u posted, it seeems that ur AOS was applied when u were not in status and may be denied..

[Hima712]

From Company A - I am having Valid H1B till 2014

Company B applied H1B transfer and it was rejected on Feb 2012, Company b appealed for it with in 2 days.

After getting the appeal reciept Company B applied for new H1B.

April 24 I got the approval, but in that they said I have to go to india for stamping.

My husabands company applied for my AOS on March 20th.

[cap-gap]

i mean u can not get a correct response w/o all dates..

[cap-gap]

did u start working for B right after the first H1B application (with B) receipt notice...did u check whether second "B" petiton requested for extension of status?

also what is the date AOS was applied..do u have a valid H1B stamping..

hang in there..u will get an answer in about three to four days(after my response & ur reply & any other replies clear the "Admin processing")

[Hima712]

Yes, after applying for my H1 for the first time I started working with the receipt notice.

July 2011 - First H1B petition filed

Feb 10th 2012 - First H1B petition denial - appealed with in 2 days

March 20th - My husbands company applied for our AOS and received receipts on March 27th 2012, April 26th received Finger Printing notice.

March 24th - Company B applied for 2nd H1B in premium processing

April 24th - received H1B approval but I-94 is missing and I was asked to go out of the country for stamping and also they denied EOS and said that from Feb 10 2011 I lost my lawful status, so I stopped working from that date. So If I see as per the EOS denial I am lawfully working from Feb10 2011 - April 25th (75 days out of 180 days).

But now I stopped working and I am staying on AOS pending status.

I want to know is there a way I can apply for amendment for H4/H1 EOS staying in US?

due to the above unlawful days will it be a problem for my AOS approval process? If so then what I should do to avoid or take a precautionary measures?

Appreciate your help.

[cap-gap]

there are some inconsistent items in ur reply..see the red ones..

Yes, after applying for my H1 for the first time I started working with the receipt notice.

July 2011 - First H1B petition filed

with A? approved? got a stamp?

Feb 10th 2012 - First H1B petition denial - appealed with in 2 days

u mean denial of first petition with B, right?what is the appeal status(pending, i guess?)

March 20th - My husbands company applied for our AOS and received receipts on March 27th 2012, April 26th received Finger Printing notice.

March 24th - Company B applied for 2nd H1B in premium processing

April 24th - received H1B approval but I-94 is missing and I was asked to go out of the country for stamping and also they denied EOS and said that from Feb 10 2011 I lost my lawful status, so I stopped working from that date. So If I see as per the EOS denial I am lawfully working from Feb10 2011 - April 25th (75 days out of 180 days).

did u work from feb 10-april 25 th? on what basis? appeal of denial does not guarantee authorization to work..

But now I stopped working and I am staying on AOS pending status.

ur AOS might have been applied while u were out of status, but may depend on the outcome of appeal decision..

I want to know is there a way I can apply for amendment for H4/H1 EOS staying in US?

if u have a valid stamp with A, just cross the border and reenter with new I797 and request for new i-94

due to the above unlawful days will it be a problem for my AOS approval process? If so then what I should do to avoid or take a precautionary measures?

there were several memos issued, clarifying status issues for people that worked while transfer pending...u really need to consult a good lawyer..

Appreciate your help.

why was first petition with B denied, while the second was approved? appeal decision may favor u, but again get in touch with a good attorney

[Hima712]

I dont have stamping, I have H4 stamping which got expired in 2010. I was working in US after applying H4-H1 COS.

My first H1B with Company B was denied because USCIS misunderstood that I was working at company B before my LCA was filed, so they denied it.

Company B appealed on it.

Corporate lawyer said I can work during the appeal and then they will file another H1B, due to which I worked. I specifically asked can I work if not I will convert to H4. But he assured that I can work, so I did.

Now my only concern is since it is 75 days and still with in 180 grace period, whether my AOS approval will be effected with this?

[INDNewYork]

Greed comes back at some point of time. You need to face the H1 stamping atleast once to prove you are eligible. No offense meant. Seems you came on H4 and COS to H1. Now the big thing AOS is in trouble.

[Hima712]

I started working from 2010 before that I was on H4. I applied H1 in US and since I got H1 I started working. I was planning to go and get it stamped after the approval from company B, but mean time AOS was applied.

So now I am concern is will my AOS has any problem? If so pls suggest me what I should do?

[Belle]

You only need stamping if you must get on that H1 and be in status. Since your I-485 is filed, you are in legal presense, and don't have to leave the country. Obviously, you can't use H1 without stamping, so you may use EAD to work.

[cap-gap]

USCIS denial of EOS implies that it considers u were out of status in March...and u filed ur AOS in March...

as mentioned already unless the appeal decision favors u, u may be deemed out of status when AOS was filed..there is a little chance that USCIS may overlook it..its up to u if u want to gamble on the chance or consult with a specialized attorney, not ur employer's attorney, to discuss options like 245..

[Hima712]

But unlawfully I worked for 2.5 months listening to my corporate lawyer ( They said to continue working on H1B appeal).

Will this unlawful work effect my AOS approval or will I be ok. Now I am not working and waiting for my EAD.

Pls advice me. Thanks for all your help and advices.

[Belle]

You were presumed in H1 status at the time of the COS. Even if this period you are considered to be working without auhtorization, you can do it for up to 180 days and still get your green card approved.

[Hima712]

I got my EAD card. But I have a question to the experts:

My AOS was filled when I was Out of status. I have 75 days of unlawful and unauthorized work. Will 245k covers my case or is it going to be a problem since I applied AOS during out of status.

[Belle]

Up to 180 days of out of status or unauthorized worked (usually, combined) are permitted.

[Hima712]

So these 180 days hold good if I apply AOS when I am out of status too. Sorry for going in circles. I also know that you all know better and than me, but its just my doubts I am asking.

As per above clipping, will I be still covered under 245K. Can I apply for AOS when I am out of status?