Major issue, need help please

[omshiv]

My ignorance lead to my downfall and out of US.

I was under the impression that my H1B Visa expiry date, ie. 797 H1B Validity date was the date until I can live in the US. Unfortunately that isnt the case and the I-94 is!!

I didnt find that out until the time came for my 7th yr H1B extension. My I-94 expired in 2008. My employer when he found out asked me to leave US immediately regardless of my Huge Credit Card debt, my vehicle under Finance, Apartment lease, etc. He said avoiding a Ban is more imp then Bad credit rating which can always be improved once Im back in US.

Now at the background my attorney has already responded to my EB2 I140 RFE. I'm hoping it gets approved this time after 2 RFE's, then Denied then filed for MTR-AAO (waited 24 agonizing months) and again back to USCIS Nebraska.

My questions are:

1) If my I140 gets approved, my employer who is a very nice person, will apply for PP H1B. Would I be able to come back to US? as I do not have any Clients on hand.

2) What happens to my Credit card, Vehicles. If Im back in US, I can repay them back gradually. When will my Bad credit become Good Credit?

3) What if my I140 gets declined again? What are my options.

Any help in this matter or any suggestions or advices would be highly appreciated.

[Attorney_15]

This sounds like an unfortunate situation. IF there are no bars to returning, which unfortunately do arise some of the time when one stays past the I-94 expiration, the approval of an H1B petition would generally be the basis for visa issuance. Such a petition would have to identify what IS the job that will be done in the United States and the Consulate will generally ask about it.

The situation presented is one that we would strongly recommend a consultation with an attorney to consider the details of your immigration history to identify possible course(s) of action. The information provided on the MurthyForum is only general information because of the limited ability to understand the complete scope of issues.

[habeebulla]

There are a lot of information unclear from your posting. You must provide all information. Then only some can guide you.

Q 1&3 are purely legal. So, it is better to consult an immigration attorney. Q2 is a common sense one. You, company, or your attorney couldn't estimate how long it will take you to get back into US (if possible). Nobody can estimate what is "huge" means in your case. 10K or 100K? Since you are out of US, the options are very limited. Easy way out is to payoff all debts (if possible). I am almost certain that you cannot file bankruptcy or loan modifications if you are living outside US. However, you can consult a bankruptcy attorney.

[qwerty14]

Is your I-94 in passport. When you applied for 4th year H1B extension, did you receive a I-94 stub along with the I-797 approval notice(during 4th yr extn). check before you panic

[habeebulla]

Instead of cursing yourself, state your immigration journey in chronological order.

-When did you first arrive US, what visa?

-When did you apply H1B first (approval period)

-When did you apply H1B extension (approval period, same company/place/job or different?)

For I797Bs, there is no I-94 re-validation, only notice validity period and then you must go for a visa stamping. Usually it's the first H1B. But, in your case, it was the extension (you mentioned). That's confusing. I think you still missing something in the extension application, or did something wrong in the extension. Please explain if you can.

[qwerty14]

In this case, this is my suggestion about credit cards and vehicles.

Please talk to the banks and explain your situation.

Every creditor has a payment arrangement program, where, if you have had good history of payment and show them proper documentation of your out of status and the plan to come back to US, they will defer your payments. This will not be too bad on your credit report..

For the vehicle, you can probably sell it, pay the money to bank and if you owe any balance, request for a payment arrangement. I am sure they will be able to work out something with you.

[habeebulla]

Good luck in your I-140 appeal. Another thing, this is not to scare you, but to prepare for the worse. In the visa application, following question need to be answered.

"Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise voilated the terms of a US visa?"

FYI, there are only two answers Yes or No. Believe me, result of either answer will be devastating. So, be prepared.

[qwerty14]

For the Car, ask them if you can sell the car, pay back the proceeds and pay the difference over time.

[Worker11]

I think, your employer is quite wrong. If you have an approved H1-B extension, you are legal in the US until its expiration or job termination whichever comes first plus some grace period of 15 days. There in nothing to do with your I-94. I-94 only shows that you arrived in this country legally. When you leave the USA you need to present the lower part of your approved H1-B extension notice of action. If you still are employed and have valid H1-B, your employer can file I-140 without any problem. Make sure to include all copies of your H1-B notices of action and extensions and copies of your passport with I-94. To me it looks clears that you are legal here and in your H1 status.

[worldcitizen]

"I-94 only shows that you arrived in this country legally"

This is not true

The date on I94 is the date till which you can stay in US

I 94 is what matters AFTER you are in the US.

[Joe.F]

Originally posted by Worker11:

I think, your employer is quite wrong. If you have an approved H1-B extension, you are legal in the US until its expiration or job termination whichever comes first plus some grace period of 15 days. There in nothing to do with your I-94.

There is NO grace period if a person on H1 is laid off.

The only grace period is if the H1 expires. Then and ONLY then does the person have a 10-day grace period.

[habeebulla]

Hello Worker11,

Your findings are WRONG in multiple counts. Please read the earlier postings correctly.

There is no 15 day grace period in any cases. Upon entry to US, most officers give the I-94 validity = validity of approved H1B. Some officers (rarely) will give a 10 day grace period added to this validity (only for H1Bs - which is based on USCIS policy of 10 day grace period to leave US in case of extension denial)

I-94 is the document that tells the permitted duration of stay with an expiration date. This will be re-validated (with a new expiration date) in a successful extension of stay (Number will be same as the previous white I-94 card). In the event of a USCIS audit, these dates will be checked in detail. Even a single day slip will be counted as overstay and adversely affect a case.

Rest of your points don't make any sense as the I-140 case is already in AAO. Please read the case properly.

[ven7782]

"I was under the impression that my H1B Visa expiry date, ie. 797 H1B Validity date was the date until I can live in the US. Unfortunately that isnt the case and the I-94 is!!"

I don't understand your case. When you received l-797A, Notice of Action, at the bottom you have something like

Detach This Half for Personal Records

Receipt #

I-94#

NAME

CLASS

VALID FROM abc UNTIL xyz

Here the valid until date xyz is the time you can legally stay in the US and this is your I-94 until you go out of the country and get the H1B visa stamped. After stamping you will receive I-94 in your passport. Wasn't that the case?

--Venkat

[Worker11]

Folks: you seem knowledgeable on many instances but here you are wrong totally.

If you arrived in the USA let's say in 1991 on B-1 visa, an IO make you stay in the USA for 6 month, you can extend your stay for 6 more month and at some point you entered a school and got F-1. You will be in the USA legally unless you quit your school. There is nothing to do with your original I-94.

Then if you got employment and H1B, your notice of action I-797A will have A NEW I-94 record for you VALID as long as you work for your employer or until extirpation of your H1B.

If you extended your H1B for one more year, your new approved H1B Notice of Action will have new I-94 for you valid as long as your H1B is valid.

LOOK FOR YOUR NEW I-94 AT LOWER LEFT PORTION OF I-797A NOTICE OF ACTION. IF YOU WANT TO LEAVE THE US, DO NOT FORGET TO TURN IN THIS PORTION TO A FLIGHT ATTENDANT.

Again, an issue can be termination of employment. If it terminated, an alien non-immigrant worker must leave the US ASAP. But he can be for 180 without penalty. Usually grace period is about 15 days after termination.

[Worker11]

I also want to add that your employer might not give you the right copy of Notice of Action, which should be I-797A with a new I-94 at the bottom of the form. Read all instructions carefully on the back of the form. Every thing is spelled out clearly there. Your right I-94 is that which is a part of I-797A form. Not one which is in your passport. Anyways, if you want to leave the country you present your passport's I-94 and the right portion of your I-797A form.

[Worker11]

I cannot believe that immigrations lawyers could tell you such a nonsense.

For H1B extension, if approved, the USCIS issues a notice on action on I-797A form. The lowest portion of this form has your I-94 departure record. THAT IS THE RULE OF THE USCIS. The date on that portion on that new I-94 or the date of your termination would be the last gate of your H1B status.

I can admit that employers or school international programs officials can be ignorant. I saw a lot of ignorant people and people who simply dislike potential immigrants.

I suggest that you contact USCIS and talked to them and asked to issue you a duplicate of the right copy of I-797 with I-94. Do not let sly people to fool yourself.

[Worker11]

This form I-797B is issued to an non-immigrant worker who will apply for visa in his/her home country. If you were in the USA, you should be issued I-797A form. The reason that you got this form was that your petitioner and their lawyer filed the application and the area which says that the beneficiary will get this form in his/her home country US consulate.

You should check it. That's probably of numerous tricks your employer and their attorneys do to foreign nationals, if they want get rid of them of thy to get more money out of them. I would sue them. If you have your ethnic/national diaspora associations, like French Americans, for example, they should have layers. Contact them.

[Worker11]

Here is some informed discussion about the issue with variations of I-797's http://www.**********.com/ You may also google for similar cases. clearly, there is fault of your attorney who filed the petition form.

[This message was edited by Admin on July 26, 2011 at 12:04 PM.]

[pontevecchio]

2OP

As said by the Lawyer#15 please talk to the firm of Murthy or any of your choice. Extremist opinions are par for the course in a forum and you should be wary.

[ven7782]

I have never heard of this 797-B. Under what circumstances is 797-B issued?

[ven7782]

Got it. 797B is issued for those who apply from their home country. In your case its a simple extension/transfer and you should have never received 797B because you are not in India. You employer/lawyer have done some major screw up.

[Attorney_15]

Consultation with an attorney to review the events of one's immigration history can sometimes (but unfortunately not always) shed new light and identify options not previously considered. Some of the time those options are a stretch, with a small percentage chance of success, but every so often even those cases work out.

[ashwin_35]

I agree with Worker11. If you have an approved H1B extension with the I-94 on the lower portion of the I-797A, the date on this new I-94 is the new validity date for your stay in the US. However, I'm not aware of the I-797B that some of you have mentioned here. Maybe, if the I-797(A or B) does not have an attached I-94, then your older POE I-94 is the one to follow.

I myself have an I-94 (obtained at port of entry) with an expiry date in 2009. But, I got a H1B I-797A extension approval notice with an attached I-94 with expiry date in 2012. Then, I changed jobs and got another I-797A with a I-94 with expiration date in 2012. I haven't travelled internationally since 2009. I contacted 2 attorneys and several other who went through this and they have all confirmed that the date on new I-94 (attached to latest approved I-797A) supercedes dates on previous I-94's.

[Worker11]

After I re-read your case carefully, I can say the the Murphy attorney is right and you really need a good, qualified lawyer to appeal the issuance of I-797B form and retroactively issue the right one: I797A. Do you have a copy of application package they sent when you got this wrong I-797?

[ven7782]

You can appeal the issuance of I-797B form instead of I-797A but the appeal process takes a long time to resolve. I also believe you made a mistake by going back to India. You could have better appealed your case being here. You have over stayed your stipulated time anyway so how will going back to India avoid a ban? You could have consulted a good attorney before packing your bags.