Applied H1 and travelled to India for vacation on H4

[vpmvpm]

Hello All,

 

Greetings !

 

Here's my situation.

 

I was in H4 since July 2010 and applied H1 in April 2013.

I travelled to India for a vacation after checking with my sponsor ( who's my current employer )

from June 2013 - Aug 2013. My H1 was not approved by the time I returned and I entered US with my valid H4 status.

Later in Oct 2013 ,I got an RFE for my H1 and finally my H1 got approved only in mid Jan 2014.

I was working since - till now. Paying taxes and all went well and good.

 

Now , I've applied for a full time position with an American company and now at the very final stage of all the hiring process , today the lawyers who's handling my H1 transfer , sent me an email as "As I travelled outside US while applying for a Change of status , the USCIS would view my immigration status as "unlawful presence" ( not even "overstay" ) and I would be subjected to "three-year-bar" admissibility to US."

 

I've a valid I797-A valid from 2014 - 2016 and that also says "the above petition and change of status have been approved ". Also I have a valid I-94# with the same validity period as of I797- A.

 

My questions are

 

a) I'm working in H1 since Jan 2014 till now . Is there any chance that USCIS approves  my  H-1B petition by mistake (??!! )  and (without realizing that  I have departed the US while the H-1B petition was pending with USCIS)

 

b) If I apply H1 transfer with the new employer , will they revoke my H1 and deport me as mentioned by the lawyers with "three-year-bar".

 

c) Say If they revoke my H1 , will I be able to get back to my H4 status ( which has validity till mid 2016 ) continue staying in US with my H4 status. I'm more worried about this deporting and three-year-bar thing as my husband holds a Full Time job here and have 1 kid.

 

Do I have to proceed further asking my new company's lawyers to apply for my H1 transfer or to stay with my current employer.

Or what should I do at this point to retain my H1 status and continue working.

Or at the least case , not to be deported for "three-year-bar" because of  "unlawful presence  and continue staying in US for my family sake.

 

Thanks for reading this query and I really appreciate if you can share your experience or suggestions related to this.

 

 

 

[jairichi]

a. Your new employer is correct. Since you traveled outside US before H1B approval that COS part of H1B is considered abandoned. Even if USCIS had approved it in error you should have exited US and later entered US with a valid H1B visa and I797 to commence work for employer.

b. Possible. Talk to an attorney from Murthy law firm as you have performed unauthorized employment from mid Jan 2014 till now. This is a very serious issue.

c. If there is a ban then you cannot stay here. Talk to an attorney asap and stop working.

 

Your priority is to talk to a good immigration attorney asap and try to sort this issue. As I said stop working right away. You may or may not be banned.