Submitted h1b extension to USCIS while in India and staying in USA after I-94 expiry

[vinayak hegde]

#Please Immediate response required.
Hi, I seemed to be in a challenging trouble. please help me way out. 
Note : All this scenarios are as per this year 2019.

I had submitted docs for h1b extension on April 15 and informed my attorney that I would be traveling to India on May 4 for my marriage and return back to USA by 2 weeks. 
Before leaving from here (USA) I checked with my Attorney if my extension was submitted, if not I also mentioned I could change my travel plan to postpone by 3-4 days. But my attorney confirmed that it was just submitted on May 3. I just believed that blindly (as it was my first h1b extension, which I didn’t know much about things to handle such complicated circumstances perfectly) and left USA on May 4 (Saturday). 
I got married and travelled back to USA within two weeks and entered USA on May 20. 
“My I-94 expired on Jun-30.”

Later after receiving the receipt number for extension applied, I just checked it in USCIS site that my extension was actually submitted to/ accepted by USCIS on May 6 (Monday). On this day I was in India for marriage vacation. But as I said earlier I didn’t knew completely about the h1b extension things to handle this scenario in better way, I thought it’s usual and just carried away with my work and stay even after I-94 expiry.

I got RFE on September 3 with last submission date to respond as Dec-2. My employer usually doesn’t let know RFE reason and usually many people get RFE in our company. So I thought it’s usual to get RFE. But recently itself after enquiry to my attorney regarding RFE reason they disclosed me that it’s due to “Maintenance of status “ and even the documents asked in RFE is all related around I-94 validity, Full Travel history and all passport pages. 
So I got alerted and shared my situation (all above discussed) to the attorney.
Now they are planning for consular processing also they’re going ahead to respond to RFE (documents submission) by this week (Nov 3rd week).

My main concerns are: 
1. Was my extension submitted to USCIS while I was in India was totally invalid ?
2. Is my working and stay after I-94 expiry (June 30) is illegal ?
3. I have read the below article on USCIS site  about unlawful presence and bars admissibility.

https://www.uscis.gov/legal-resources/unlawful-presence-and-bars-admissibility

According to the document it states person shouldn’t stay atleast after 180 days to survive from a 3 year ban. According to my I-94 expiry (June 30), my 180 days period commences on Dec-27. So if I don’t hear back from rfe response or consular processing response will it be good option to leave USA immediately or before Dec-27 to avoid 3 year ban ?

[gopalakrishnach]

Sorry to hear your ordeal. I am not an expert and below are my personal opinions.

A good employer along with immigration firm/attorney must help their employees in such cases.

Just as a safe bet try to see whether you can do transfer to someother company?

After I94 expiry you will have certain time-limit to do H1B processing which will give new I94 ( sometimes it will not. In that case leave ASAP). In case of negative result since your I94 already expired you must leave ASAP.

You did not tell what was last date of your H1B for which you did extension

1. Submission is as per employer discretion and they have to normally due before H1B expires and gets new approval so that employee do not become out of status.

2. There is a time-limit.

Have your case discussed with some other immigration lawyer who is not throught by your employer.

[SPV]

On 11/18/2019 at 8:17 AM, vinayak hegde said:

 

Hi,

#1-Extension application is not invalid. You mentioned about your I-94 expiry date but what about your H1b expiry date? Anyway, you were back to USA before your i-94 expires (and I hope before your H1b expires). They must have validated your stay at port of entry. I think you should be good on this.

#2- There is a 240-day rule which states that you can work for 240 days after your current H1b expired in case you applied your extension before your i-94 expires. So you can calculate days from current H1b expiry date. Of course after that you can't work but can stay in USA until you get decision from USCIS for your extension.

#3 - I am not sure on this, as per  #1 & #2 you stay seems to be legal(of course based on  information provided by you).

 

Note: This is not a legal advise and just my opinion.