USCIS error resulting in Out of Status


sumlow

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My H1B was applied in India by my company under Cap-exempt category although I had only few days left from the quota of 6 years from my previous stay in US more than a year ago. USCIS approved my petition for 3 more years. I entered US on this approved petition and Visa. An amendment was filed after I was here due to a change in work location. I received a RFE stating that I have already completed my 6 years in USA. It seems that my H1B was incorrectly filed in Cap-exempt category. I am in the country for the last 10 months but the RFE was received only 2 months back.

 

Now my attorney states that I am technically out of status although my I-94 is valid for another one year. They plan to pull back the amendment request. I have following questions:

1. Can I still stay in the US working at the location approved earlier as my I-94 is valid?

2. I fulfill L1A requirements. Can I apply for L1A in the current circumstances while being in the US?

3. Considering that this was a USCIS error (while approving my petion earlier), what should I do so that my history does not state that I was in Out of Status.

4. Should I immediately go back of the country. But how does that correct the history as technically I have been out of status for 10 months purely becuase I was not aware of the scenario.

 

Any other suggestions?

 

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I-94 authorizes you for US stay, not work. You must leave US immediately as your H1b completed 6 years and you have counted more than 180 days of out of status. Though it's USCIS error, the onus is on us to make sure we comply the laws. If you go outside US right now and later file another petition H1b or L1B etc. when you enter US on a approved visa, that entry would wipe out all your previous out of status issues. USCIS treats out of status period only after your recent entry into US. 

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You need to discuss your options with an experienced immigration attorney in the U.S. Also I am not sure how you will even qualify for L1A, (1) you have been on H1B all this while, (2) L1 requires you to be employed by an affiliate company outside the U.S. on a similar capacity for one year in the past three years, (3) 6 year includes the stay on L1 too;  I doubt if you will an opportunity to correct the out of status, unless LC / I-140 was pending for more than 365 days or I-140 is approved and the same was not include while extension was filed your petitioner......... Take no risk contact Murthy Law Firm immediately.

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Thanks for your inputs. Few clarifications and follow up questions:

1. Regarding initiating my L1A from US: I was in India for 2.5 years prior to my return to US last year. So that would make me eligible. But the question is can my L1-A individual be intiated from the US in the current circumstances?

2. My wife who is on H4 has a I-94 that is valid till next year. Is it legal for her to stay while I go back and try to get a new visa?

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