Critical situation - I94 expired, 7th yr ext pend, RFE in LCA

[morphtk]

Hi,

I tried to find information on this forum but couldn't see any related answer or situation.

My particular case:

1. I-140 approved April 2012

1. H1 completed 6yrs on May 30, 2012. 7th yr extension(3 yrs) applied Nov 2011 with approved I-140 but still in process.

2. Lawyer received RFE in June 2012 (after 6 months on SR) noting a discrepancy in LCA. It seems the prick messed up in the annual pay numbers. So, he has to redo LCA and send it back to USCIS.

My question is:

1. He was saying that if the H1 extn gets approved I will have to travel outside country and get H1 stamped since the approval might not come with I-94 extension because the new(corrected) LCA would be filed after H1B(I-94) expiration.

Also, there is a possibility of approval with extension (if USCIS is generous) or denial (where he would re-submit). I don't have immediate plans to travel, but he said I would have to within few weeks of approval (if I-94 not extended). Is that correct information? or there is something that can be done to avoid such a scenario? I understand that in normal scenario one has to get visa stamp (if I-94 is expired with valid I-797) but NOT required to leave US.

2. I have very little faith in my lawyer or employer at this point of time. Can I change employer(find a new job) at this time with I-94 expired and h1 extn pending and try to get H1B applied through the new employer?

3. Any other option do I have?

Any advice would be appreciated.

[morphtk]

Hi Everyone,

I've being waiting to get some response on this issue.. Stuck in a big mess, please advise.

If need more clarification let me know.

[kalyan_ac]

If you get I797 without an I94 attached at the bottom, then you will have to go to stamping and return back.

If otherwise you are good and no need for travel.

You can transfer your H1b based on the approved I140 as long as that is not revoked.

[morphtk]

If you get I797 without an I94 attached at the bottom, then you will have to go to stamping and return back.

If otherwise you are good and no need for travel.

You can transfer your H1b based on the approved I140 as long as that is not revoked.

Hi,

Thanks for your response.

Sorry for the late response, but the current status is that my H1 got denied (don't know the reason of denial yet).

So now I'm in deeper troubles and want to know what options I can go with.

1. Can I apply for fresh H1? Can I re-apply for H1 extension(new)? Can I apply for H1 transfer and/or extension with another employer?

2. I know I can appeal for the denial but that would just give me more time to stay (and not work) and the success rate is feeble.

3. You mentioned I can transfer H1 based on approved I-140.. Could you please elaborate on this.

Thanks.

[kalyan_ac]

You can apply for H1b with a new employer based on the approved I140 as long as it is not revoked/withdrawn.

However, if it does get approved you may have to travel and come back to get an I94.

[catx]

With an expired I-94 and a denied H-1B petition, then you are likely accruing out of status days every day, and if you are continuing to work you are doing so illegally. (Note: An H-1B extension is the same as a new petition.) If this is the case, you should leave the U.S. (right away) so that you do not incur a many year entry ban.

While out of the U.S., a new employer can file a new H-1B visa (extension) petition based on your approved I-140 -- as long as it has not been revoked -- and you can then return to the U.S. upon visa approval and stamping.

There are no 'bridging' options to remain in the U.S. working with an expired I-94 and H-1B visa, and you run the risk of removal and a multi year entry ban by staying out of status.

[morphtk]

So as of current standing, the employer applied for a new H1 extension based on the approved I-140.

This H1 extension application is applied after my I-94 expiration and the previous H1 ext denial.

I read on various forums that, if I apply for extension after I-94 expiration, I would get approval with no I-94. This means that I should get out of the country and re-enter with a new stamping and I-94 before starting to work.

But, few questions/concerns that I have:

1. Can the new H1 extension (filed after I-94 expiration) be denied for the reason of out-of-status when filed?

2. Since the reason for my delayed new H1 extension is because of previous H1 ext denial. Can this be a fair reason for favorable discretion for I-94 issuance?