Which I-94 is active?

[yetanother]

Hello .. heres the scenario --

1. My wife’s company had applied for a H1 visa renewal/transfer for her in July 2010 (due to change in company name). It was not approved for a long time.

2. The H1 ‘transfer’ was finally approved by USCIS in Nov 2010.

3. A week after that we left for a vacation to Mexico and returned on Dec 2nd 2010. My wife was not in possession of the latest 797 at that time. She entered using the I-797 she had (not new one). It has an expiry of Nov 2011. Thus the I-94 she received from the immigration officer has an expiry of Nov 2011.

4. We did not receive the new 797 for quite some time. Her employer’s lawyer said it is probably lost – and applied for a Duplicate copy of the new 797.

5. In January 2011 the USCIS mailed out a duplicate copy of her new I-797 (with an expiry of March 2013). We are in possession of that I-797 (with I-94 attached).

My question is – which is her current active I-94??

[SameerH1Bworker]

I-94 issued at POE is the one. As your I-797 was issued before you came to US from Maxico, so, now you can go to CBP office & get it correct with new I-797A form. Otherwise whatever date mentioned on I-94 issued at POE is the last day to stay in US.

In simple word, whichever I-94 issued at last is the valid & date mentioned on that is the last day to stay in US.

In your case you got DUPLICATE copy after I-94 issued at POE, so, in this case it will be I-94 issued at POE is the valid & date.

[pontevecchio]

Ask her Employers Lawyer as to what the situation is.

[dfw83]

Last action first applies here

PLease dont go to ur employer. They might terminate considering ur out of status

Hire a lawyer who has good ties with CBP and get the I 94 corrected this is the safest route I was in similar situtaion last year around this time

[hazelickes]

Complicated case. Any form recently filed with USCIS will cancel the previous application. But since your wife had entered with the old form, its better you contact the USCIS once and get clarified.

[Attorney_23]

Filing a new application does not ordinarily cancel a previous application.

In any case, I would recommend you consult a qualified immigration attorney. You may be able to have this issue resolved by going through deferred inspection or through USCIS. However, the longer you wait, the more difficult it is likely going to become to modify your I-94.

[yetanother]

Thank you all for your replies.

We contacted 2 law firms. They both gave opposite answers! One law firm said that the Port-Of-Entry I-94 is the valid one. My wife's employer's lawyer said that the *new* 797 with attached I-94 is valid.

We will try contacting USCIS for clarification.

Thanks.

[RashmiB]

Did you revieve any feedback?

[yetanother]

Posting USCIS response on the thread.

We visited the USCIS local office. The officer heard and understood our dilemma. He said that it is not an issue. CBP has the I-94 which we received at the Port of entry on file. But we can start using the other (new) I-94 that came with the new 797 (with an expiry of 2013).

Hope this helps if anybody else is in a similar situation.