I-797 approved w/ I-94 while being out of status for 30 days

[kiloman]

I joined a new company on April 2 based on CIS received my H1B petition on March 30th 2012. It was little over a week there when I was contacted by my previous employer that they have revoked my H1 effective Feb 21, 2012. I informed the same to my current employer's attorney and soon after that, they took me off from the payroll and asked me to wait for the next steps. The same week they filed for premium processing and on April 23rd, CIS approved my petition & extension of stay w/ new I-94 card. Now, my current employer is asking me to leave US and get the visa stamped, basing their judgment that CIS might have overlooked my out of status period ( Feb 22 - March 29) and granted the extension of stay in an error. Is that true? Do I have to leave US and get the visa stamped from India/Canada? What I know of is one is authorized to work w/ I-94 card and it is not required to get the visa stamped. Please advise..

[wiweq]

I wonder how your employer can decide that USCIS committed this error. In my view, it’s not an error and you are not required to leave USA to get stamping.

[kalyan_ac]

When was the H1 petition filed with your current employer?

Since CIS approved the petition with I94 you dont have to get stamped but it may bite later in GC processing.

Its better to go for stamping.

But why was there so much of delay between filing the H1 with current employer when the H1b with the previous employer was revoked on feb 21st?

[wiweq]

"Its better to go for stamping."

=> I wonder how stamping will fix the problem what already done. USCIS has the right to ignore such out of status days. Don't try your luck again by going for stamping. I would suggest stay in USA and keep working for your H1b employer.

[kiloman]

The H1B petition was filed on March 30th, 2012. The delay was not in my control as the whole process of finding the right job, getting through the interview process, filing LCA and H1 takes it's own time. This is what I got from my research:

Eligibility for H-1B portability is defined at INA §

214(n) as follows:

1. The foreign national was lawfully admitted

2. the new petition is "nonfrivolous"

3. the new petition was filed before the date of expiration of period of authorized stay

4. subsequent to lawful admission, the foreign national has not been employed without

authorization

If an H-1B nonimmigrant meets the above-mentioned criteria, s/he would be eligible to work

pursuant to H-1B portability even if s/he was not eligible for an extension or change of status.

So, for example, an H-1B nonimmigrant is terminated from her H-1B employer on January 15th.

In order to avoid monetary penalties, her H-1B employer requests revocation of the petition that

same day, and it is automatically revoked under 8 C.F.R. § 214.2(h)(11)(ii). Two months later,

the alien finds a new employer who files a new, non-frivolous H-1B petition on her behalf. Since

1) she was lawfully admitted; 2) the new petition is non-frivolous; 3) her I-94 has not expired

and she has not worked without authorization, she is eligible to start working under INA § 214

(n). However, she may not be eligible to extend her H-1B without a favorable exercise of

discretion under 8 C.F.R. § 214.1©(4)

.

This does not mean she is not authorized to work under H-1B portability. What it means is that

she may work "until the new petition is adjudicated." Upon the approval of the petition,

authorization to accept employment pursuant to H-1B portability terminates, and, if the

USCIS declines to favorably exercise discretion under 8 C.F.R. § 214.1©(4) to "forgive" the

failure to maintain status and to grant an extension of stay, she instead will need to depart the

U.S. and either obtain an H-1B visa at a U.S. consulate, or, if she already has a valid H-1B visa

from her former employer, she will simply need to depart the U.S. and, upon re-entry, present

her old visa with the new I-797 and continue working.

Per 8 C.F.R. § 214.1©(4) - Timely filing and maintenance of status:

An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant; and

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

[Shaunakonline]

When was the H1 petition filed with your current employer?

Since CIS approved the petition with I94 you dont have to get stamped but it may bite later in GC processing.

Its better to go for stamping.

But why was there so much of delay between filing the H1 with current employer when the H1b with the previous employer was revoked on feb 21st?

I agree with immigrationseeker...

I was in a similar situation and I was out of status for 14 days, I got RFE from USCIS asking for proof that I was maintaining proper status. And I was not. I received approved petition with out I-94 and was told to get visa stamped for new employer.

[wiweq]

" I received approved petition with out I-94 and was told to get visa stamped for new employer."

=> In this case, OP has got I797 'with' I94. In my view not need of consular processing.

[kalyan_ac]

"Its better to go for stamping."

=> I wonder how stamping will fix the problem what already done. USCIS has the right to ignore such out of status days. Don't try your luck again by going for stamping. I would suggest stay in USA and keep working for your H1b employer.

You are right. It will not fix anything and this is only as precaution to prevent CIS coming back to this later.

[luck2u]

Though Kiloman will not attend for visa now as per his employer's advise, there is risk at anytime whenever he attends for visa in any consulate i.e., may be in India or Canada. Sometimes, there are chances of errors by CIS.

[immig7]

i have similar situation and i am now out of status pending my new H1b approval (filed already). my start date is >30 days from current termination.

need some expert advise, please post

[JoeF]

If the person got an I-94, there is no need to go abroad.

USCIS officers have the discretionary power to grant COS even if a person was out of status for a short time.

[wiweq]

"i have similar situation and i am now out of status pending my new H1b approval (filed already). my start date is >30 days from current termination.

need some expert advise, please post"

Your case is a bit different. OP has got H1b approved with attached I94.

In your case, most likely if H1b is approved, I94 won't be attached with I797 and you will be asked for consular processing or reenter USA(if you have visa already stamped).

[immig7]

are there any problems if you are out of status for >30 days.

1. Like deportation, bar or other penalties.

2. If you go out of country, having received new I 797 with new I 94, does the counsulate cause any problem due to previous out of status

3. Does every one get RFE for being out of status

4. what do you reply in RFE...like just stating that you had no job or do we need a attorney?

5. How does CIS find out about your out of status, if your employer has not revoked your visa in time?

lots of questions, please advise

[wiweq]

are there any problems if you are out of status for >30 days.

1. Like deportation, bar or other penalties.

=> No deportation for 30 days OOS. If you have valid I94 doesn’t matter if its from your previous employer, your stay may be counted as out of status but not 'illegal stay'. 3 years ban is for 6 months out of stay.

2. If you go out of country, having received new I 797 with new I 94, does the counsulate cause any problem due to previous out of status

=> Be prepare to tell the reason of out of status to VO during stamping.

3. Does everyone get RFE for being out of status

=> Totally depends on USCIS.

4. what do you reply in RFE...like just stating that you had no job or do we need a attorney?

=> Generally, they don’t issue RFE for status problem; they just take off I94 and refer for consular processing in your home country.

5. How does CIS find out about your out of status, if your employer has not revoked your visa in time?

=> USCIS needs paystub to make sure you are in valid H1b status.

More questions, let us know!

[immig7]

Thanks wiweq

=> USCIS needs paystub to make sure you are in valid H1b status.

do they actually receive pay stubs for everyone who is on H1b? One lawyer told me that if your employer does not revoke, then the gap that I have may not be a big deal. worst case will b e me leaving to home country for a brief period of time. what is your take on this

=> Be prepare to tell the reason of out of status to VO during stamping.

do VO/counsulte receive any information or is this a voluntary information that we have to provide. Since i am laid off, and only reason I am staying in the country is my children's education/school. Is this a good explanation?

Once i get visa stamping from home country and my start date is July1st, how many days prior I will be allowed to enter the country?

pls advise

[wiweq]

=> USCIS needs paystub to make sure you are in valid H1b status.

do they actually receive pay stubs for everyone who is on H1b? One lawyer told me that if your employer does not revoke, then the gap that I have may not be a big deal. worst case will b e me leaving to home country for a brief period of time. what is your take on this

==> USICS don't get paystubs automatically, they require those from H1b holders while COS or stamping or at POE.

=> Be prepare to tell the reason of out of status to VO during stamping.

do VO/counsulte receive any information or is this a voluntary information that we have to provide. Since i am laid off, and only reason I am staying in the country is my children's education/school. Is this a good explanation?

==> This may be a good reason, but again it's totally up to USCIS or VO. What I understand that because they consider H1b holders out of status from very next day of termination, they don't want us to buy house, cars etc or raise family. H1b is a non-immigrant visa that just means to work and go! Sad but true.