H4 and I-94 expired

[cbhaskara]

Hi,

My petition was valid till 30-Sep-2011 only. But my I-94 is expiring on Nov 17th 2011. My employer says i can legally work till Nov-17th and they are going to file extension in next 1 week.

My dependents' (wife and 2 kids) H4 and I-94 both got expired on 30-Sep 2011.

In this background, i have following questions:

1. Am I really eligible to work legally till expiration of I-94?

2. Are my dependents legal to stay in the country any more?

3. Can I file for H1B for my wife in this situation? Or should i wait till my employer applies for my extension and my dependents? and then apply for my wife's H1B with her employer?

Waiting for the responses!!

[Attorney_20]

Generally, the I-94 card can only confer status during the validity period on the approved H1B petition. You should have an experienced immigration attorney review your documents, including your I-94, to confirm the validity period of your status.

If you received the current I-94 card from CBP at the port of entry and they made an error on the card, you may nevertheless be out of status, working without authorization and accruing unlawful presence. The fact that your dependents' I-94 cards have a different expiration than your I-94 seems to imply some kind of error occurred with your card. Did you get your current I-94 from CBP or USCIS?

If your and your dependents' H1B/H-4 statuses expired on September 30, 2011, you are now out of status and accruing unlawful presence. If you accrue more than 180 days of unlawful presence and leave the U.S., you will trigger a 3 year bar from reentry. 1 year of unlawful presence will trigger a 10 year bar upon departure from the U.S.

If you are currently out of status, USCIS will not grant an Extension of Status or Change of Status request to you and/or your dependents. If the H1B petitions for you and your wife (and H-4 applications for your children) are approved, it will likely be for consular processing and your family will have to travel to your home country to apply for visas and reenter the U.S. to get the I-94 cards.

Based on your description, it sounds like you and your family should get your nonimmigrant petitions & applications filed as soon as possible, via Premium Processing if possible, so that you can obtain a quick approval, depart the U.S. to get visas, and reenter after the visa applications are approved. But you should also explain your immigration history to an experienced immigration attorney who can carefully review your documents and properly advise a course of action. The Murthy Law Firm has dealt with similar facts and these types of cases can get complicated very quickly so you should speak with someone as soon as possible.

[cbhaskara]

If you received the current I-94 card from CBP at the port of entry and they made an error on the card, you may nevertheless be out of status, working without authorization and accruing unlawful presence. The fact that your dependents' I-94 cards have a different expiration than your I-94 seems to imply some kind of error occurred with your card. Did you get your current I-94 from CBP or USCIS?

Reply: My current I-94 is from CBP and not from USCIS.

[Attorney_20]

CBP probably made a mistake. You should immediately have all of your documents reviewed by an immigration attorney so that s/he can recommend the best course of action in your and your family's cases since it appears that you are all accruing unlawful presence right now. You all will probably have to get back into status via consular processing (i.e., travel to your home country to obtain visas, travel to the U.S. and be lawfully admitted by CBP at the port).

[cbhaskara]

CBP probably made a mistake. You should immediately have all of your documents reviewed by an immigration attorney so that s/he can recommend the best course of action in your and your family's cases since it appears that you are all accruing unlawful presence right now. You all will probably have to get back into status via consular processing (i.e., travel to your home country to obtain visas, travel to the U.S. and be lawfully admitted by CBP at the port).

Latest:

My H1B extension was applied by my employer on 26-Oct-2011.

Received RFE on 11th Nov 2011

Response submitted on 23rd Nov 2011

Got another RFE on 8th Dec 2011

Yet to submit response - may submit on 16th Dec 2011.

Can we expect USCIS respond before the holidays or would the lead time be usually 15 calendar days or working days?

My employer is now thinking of sending me back to India. Not sure if that is a good idea. Am I expected to get a consular processing 99% or is it a 50-50?

Appreciate an early feedback!

[Attorney_20]

What are the issues being raised in the RFEs? If you filed the case premium processing, the issuance of an RFE resets the 15 calendar day clock. So the moment you file the RFE response, USCIS should process the case within 15 days of receiving the RFE response. Or they could potentionally issue yet another RFE to reset the clock again.

Visa approval in India is generally difficult these days, especially if your employment in the U.S. is an EVC (employer -> vendor -> client) model. But please keep in mind the fact that you are accruing unlawful presence if you don't have an unexpired I-94 card. As mentioned before, once you cross 180 days of unlawful presence, you will be barred from reentry into the U.S. upon departure for 3 years. If you haven't done so already, please contact an immigration attorney to help you with this case.

[adityapar]

I have a similar case.

I have my approved H1B from last year but COS has not ben approved since I am on L1A Visa. My L1A is expiring on May-17 (I94 - Jan 2015). My Wife's L2 is expiring on same date (I94 - May 19, 2013)

Now in May 1st week, my employer has applied for H1B COS for me and I539 for my wife. My case went into RFE (I129) and I am respondingto all the questions.

I want to know whether I can stay in US untill RFE is either approved / denied (Given I have valid I94 from my L1 Visa)?

Can my wife stay in US beyond May 19, 2013 untill RFE is either approved / denied? (her I94 is expiring in couple of months)?

Please advice.