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lippy

I-94 expired 10 months ago - Out of Status - Please help - URGENT

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I am a citizen on India, got my MS from University in USA and am working here on H1B visa for the last 3 years for the same (reputed) company

 

Issue - Expired I-94 - Overstay of greater than 180 days less than 365 days as of today.

I may get a 3 year ban from re-entering the USA

 

Details - 

I94 - Expired Apr 2013

H1B Visa - Valid till Dec 2014

Passport - Old one expired Apr 2013, new one valid till 2023

 

 

Possible Solutions - 

(i) Cross the border into Mexico or Canada and ask the CBP officer on return to provide new I94?

(ii) File for a nunc pro tunc requesting back dating the I94 and also file for H1B amendment? What are my chances of nunc pro tunc approval?

 

Questions - 

- Should I hire the same lawyer who did my H1 or get a new lawyer?

 

- What are the reasons that can be given for the nunc pro tunc and what are the chances of success? Will it help if lawyer or employer mentions it is their error?

- In case the nunc pro tunc is denied will I be deported immediately or can I appeal it again?

- Should I also file for a H1B amendment or should I file for a H1B extension?

 

Please advice Im running out of time.

 

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I am a citizen on India, got my MS from University in USA and am working here on H1B visa for the last 3 years for the same (reputed) company
 
Issue - Expired I-94 - Overstay of greater than 180 days less than 365 days as of today.
I may get a 3 year ban from re-entering the USA
 
Details - 
I94 - Expired Apr 2013
H1B Visa - Valid till Dec 2014
Passport - Old one expired Apr 2013, new one valid till 2023
 
 
Possible Solutions - 
(i) Cross the border into Mexico or Canada and ask the CBP officer on return to provide new I94?
(ii) File for a nunc pro tunc requesting back dating the I94 and also file for H1B amendment? What are my chances of nunc pro tunc approval?
 
Questions - 
- Should I hire the same lawyer who did my H1 or get a new lawyer?
 
- What are the reasons that can be given for the nunc pro tunc and what are the chances of success? Will it help if lawyer or employer mentions it is their error?
- In case the nunc pro tunc is denied will I be deported immediately or can I appeal it again?
- Should I also file for a H1B amendment or should I file for a H1B extension?
 
Please advice Im running out of time.

 

Talk to a qualified immigration attorney ASAP.

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You ARE banned for 3 years. Nunc pro tunc is only option and is not likely due to YOUR error. You should have noted I94 expired with your passport. This was NOT you employer's or the attorney's error. It was you failing to attend to details.

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What are my options now? If nunc pro tunc is denied do I get deported or can I appeal or do anything else?

No point in asking here. Just consult an immigration attorney immediately.

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You have no reason to appeal or believe you deserve special consideration. You violated the rules and now must pay the price.

 

You option is to go home and serve out your ban. In the future, pay attention to details.

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As long as he has a valid 797 form with a date on the I94 on it in the future, I think he should be fine...?

 

It may always happen that your I-94 on your passport will expire and you will have your H1B extended before the expiry. So your passport I-94 expires but you maintain your H1b status all the time with extensions.

 

Please correct me if I am wrong.

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As long as he has a valid 797 form with a date on the I94 on it in the future, I think he should be fine...?

 

It may always happen that your I-94 on your passport will expire and you will have your H1B extended before the expiry. So your passport I-94 expires but you maintain your H1b status all the time with extensions.

 

Please correct me if I am wrong.

OP had mentioned I94 had expired.

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As long as he has a valid 797 form with a date on the I94 on it in the future, I think he should be fine...?

 

It may always happen that your I-94 on your passport will expire and you will have your H1B extended before the expiry. So your passport I-94 expires but you maintain your H1b status all the time with extensions.

 

Please correct me if I am wrong.

I dont think so. If the the H1 extension was filed before the I-94 expiry, the new approval would have come with an updated I-94, unless there was some issue  with the petition and the I-94 expired during the timeframe.

 

Nunc pro tunc would have worked if the OP didn't take 10 months to file, which is far too late. Usually Nunc Pro Tunc works if the petition request is sent immediately after the decision was made, which again depends on the discretion of  the adjudicating officer.

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I have started contacting various attorneys on this matter. Because it is already 10 months is there any point in even trying for Nunc pro tunc or is there no chance of approval of the same? Is there anybody who has seen or experienced a similar case who can advise me on possible steps I can take now? Any help greatly appreciated .

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I have started contacting various attorneys on this matter. Because it is already 10 months is there any point in even trying for Nunc pro tunc or is there no chance of approval of the same? Is there anybody who has seen or experienced a similar case who can advise me on possible steps I can take now? Any help greatly appreciated .

Talk to an attorney from murthy law firm.

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At one time my wife was 2.5 years out of status because our company attorney forgot to file her H1 along with my H1B when I switched job. Yes, ultimately it was our responsibility to check. As you would expect, her petition got denied and we thought she had to go back for at least 10 years (you can try hardship but your chance would be remote at best)

 

In any case we got a really good attorney to file Nunc pro tunc and her case got approved retroactively as well.

 

Now we both got our citizenship..

 

As many knowledgeable posters here say, please contact (top class) immigration attorney ASAP. I think Murthy firm would do fine. I would look for an attorney that has success with Nunc pro tunc cases.

 

Your situation is very serious, but it's not as dire as one poster make it out to be. Keep your chin up and contact attorney ASAP.

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At one time my wife was 2.5 years out of status because our company attorney forgot to file her H4 along with my H1B when I switched job. Yes, ultimately it was our responsibility to check. As you would expect, her petition got denied and we thought she had to go back for at least 10 years (you can try hardship but your chance would be remote at best)

 

In any case we got a really good attorney to file Nunc pro tunc and her case got approved retroactively as well.

 

Now we both got our citizenship..

 

As many knowledgeable posters here say, please contact (top class) immigration attorney ASAP. I think Murthy firm would do fine. I would look for an attorney that has success with Nunc pro tunc cases.

 

Your situation is very serious, but it's not as dire as one poster make it out to be. Keep your chin up and contact attorney ASAP.

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Past experience is no guarantee of future performance. Each case is unique. It is a s bad an act to give false hope as it is to lie. The OP was asked to get a Lawyer. This thread should be locked though I doubt the advisors will agree.

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lippy, i think you don't have to worry , if you have valid 797 you are good.

 

you will only get i94 updated when you go for stamping  other wise you just have to stick with your 797 .

 

if you are not going for visa stamping how come you will get updated i 94?

 

 

 

sree.

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you will only get i94 updated when you go for stamping  other wise you just have to stick with your 797 .

 

if you are not going for visa stamping how come you will get updated i 94?

 

 

 

sree.

What? Where did you hear this? When one applies for extension or COS and if approved they would get updated I94 along with I797.

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lippy, i think you don't have to worry , if you have valid 797 you are good.

 

you will only get i94 updated when you go for stamping  other wise you just have to stick with your 797 .

 

if you are not going for visa stamping how come you will get updated i 94?

 

 

 

sree.

No, that's wrong.

You will get new I94 whenever you file for ext, if not a person has to get VISA every time when he files for extension or COS.

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I think all of you are talking about different i94 forms. One comes with the 797 and the other when you enter the country. The one that the CBP officer stamps. Please do not confuse between the two.

 

Someone mentioned earlier, if your i94 that came along with the 797 form is valid, you don't need to worry. An example: if you have not gone back in the last three years, your passport i94 has expired but your 797 I94 is valid (considering you filed for the extension). You get a new one when you go out of the country and the CBP officer stamps it.

 

HTH

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No, that is not correct either.  An I-94 card is an I-94 card regardless where and how it was issued by the USCIS.  The latest issued I-94 card is the valid one.

 

One form is an I-94 card issued at a port of entry by a CBP immigration officer when you arrive in the U.S.  Another form is an I-94 card attached to an I-797A Notice of Approval for a new visa petitioned / applied through an extension or change of status.  (Note:  There are several variations of I-797 notices from the USCIS with different letters.  Only a Notice of Approval "A" has the attached I-94 card.)

 

Also, an extension or change of status is a new visa, with the adjudication and approval no different than getting a visa for the first time.

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If you get an I-94 with your approved 797 form , you dont have to leave the country. In some cases when a person change from F1 status to H1B status the 797 form will be approved but NOT the change of status. In that case, you have to leave the country and re-enter with your new status to get a new I-94

 

Nureya

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Hi Lippy, hope your problem got solved! I have exactly the same situation as yours, and I'm working with my company lawyer now. Really appreciate if you could kindly share how did you solve the problem finally?

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Hello everyone,

 

First of all thank you all for replying to my post and for your timely advise. After spending $1000 on a lawyer who didnt really help me much I decided to take the risk of crossing the border and re-entering the US over the land. After a lot of research I finalized to take a trip from Seattle to the US-Canada border and here is how it went ...

 

I rented a car at Seatac airport and started my drive to the border. Within 2-3 hrs I was at the border. The Canadian guard asked me the reason for trip and I said I want to visit Vancouver, since I did not have transit visa he asked me to park and go into the office where they told me I have to turn back because I don't have transit visa. He also did not take my old I-94. Upon re-entering the US (just a u-turn), the US guard said the I-94 on my I-797 is sufficient and he will not be giving me a new I-94 but he let me go back into the USA. I was very happy at that point but after driving for 5 mins felt this wasn't right and decided to try again.

 

So there I went ... back into the same line and back to the border where a new Canadian officer greeted me. I told her I took a wrong turn and came by mistake but still she asked me to park the car and go in the office again. This time I convinced her to take my old I-94 saying its mandatory and thankfully she complied. Upon return to US border (just a u-turn there) the US guard once again said he wont give me new I-94 and to take my I-94 card from I-797 form. This time I insisted that I have to meet an Immigration officer inside the office. He said ok if you are sure then park the car and go inside. Inside the US Immigration office the officer just asked me for my Passport and I-797, he did not even ask 1 question about expired I-94. And he gave me new I-94 on the spot. I picked it and successfully re-entered the US.

 

Lot of stress and fear went on these last few months but it ended well for me. Thank you all and good luck!

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