Will I be out of status when the corrected application was received aftr H1B expired?

[maxxx]

My H1b expired on Sept 4th 2015. 

When my company filed the H1b extension application, the application reached USCIS on Sept 4th. My Wife's H4 application was included in the application.

However, there was an error in my wife's application and they asked us to resubmit one of the document. The resubmitted application reached them on Sept 24th.

Now my employer is saying that I might be out of status as they consider 24th September as the application date. Is that right? 

My employer has moved my application to premium processing on 12th Feb 2016. We are hoping to receive an answer sometimes by next week and we are expecting an RFE because of the situation. 

On March 3rd 2016, it will be 180 days since my visa expired. I am planning to leave the country by feb 27th 2016 to be on safer side.

If my visa gets approved before feb 27th, will I get the I94 with the approval or do I need to go out of the country and come back after a visa stamping?

If I don't get the visa approved before feb 27th, I will obviously go for stamping. How will the out of status affect my interview?

To Summarize my questions:

1) Is my application date considered as 24th Sept 24th or Sept 4th?

2) If my visa gets approved before feb 27th, will I get a new I94 with the approval notice?

3) How will the out of status affect my visa interview?

Please let me know your thoughts? 

Thanks in advace.

[maxxx]

Hi all, any suggestions?

Thanks!

[pontevecchio]

If your H1 extension petition is approved then it implies you get an I94. The date on that does not matter. Your wife should also get a H4 extension at the same time. Bad form by the company to delay the filing so much. PP implies a Lawyer is handling the matter. Enquire from her what the situation is.

[maxxx]

Thanks Pontevecchio,

I hope I get the approval with the I94. 

 

I will be consulting the company's as well as an independent attorney. 

The one thing that concerns me is my case status shows that the petition was received on Sept 24th 2015. 

 

[maxxx]

I got my H1 b approved with I94. However, after consultation with my employer and attorney, I traveled to Canada so that I don't elapse the 180 day out of status rule in case I did not get the I94. 

Now, I came to canada hoping that I would be able to enter back into USA using the automatic visa re validation program. I am afraid, I may be denied entry since my visa was approved while I had already left the country.

What do you guys suggest?

will I be denied re-entry?

I am debating whether to of take the visa interview date in canada or india. My last stamping was in Toronto but had gone through a administrative processing.

Does anybody know the wait time for getting the visa dates in canada?  

[pontevecchio]

I suspect you cannot use AVR as you were not in status on that I94 ever. What does your Lawyer/company lawyer say? Be very careful what you decide to do.

[maxxx]

Thanks Pontevecchio!

 

Both lawyer said I should give it a try. Worst case, I'll have to go back and get stamping. 

I check the AVR fact sheet and it seems I should be fine as long a new visa was not applied outside USA which I certainly did not. 

What do you think?

http://www.cbp.gov/sites/default/files/documents/auto_reva.pdf

[pontevecchio]

Give it a try. They will most likely let you in with no problems.

[maxxx]

Thanks Pontevecchio!

 

I successfully entered using AVR. Below is my experience:

 

Posting this in case it is helpful to somebody else.

 

AVR worked. Was fairly straight forward.

I took a one way rental car to cross over the border from Ambassador bridge connection Windsor and Detroit. 

Officer (@ booth): Hi

Me: Good evening.

 

Officer (booth): Show me your identification. Are you a citizen?

Me: Gave him my Passport and I797. No.

 

Officer (booth): Are you a permanent resident?

Me: I am on H1B visa.

 

Officer (booth): Did you recently get this I797 Approval notice?

Me: (the question scared be a bit). I fumbled, said No. I received it last week. 

 

Officer (booth): Are you entering on this I94 for the first time?

Me: Yes

 

Officer (booth): You will need to pull up the car, go inside. You need to get it entered in the system since it is your first time. 

Officer was fairly assuring in letting me know that there was no matter of concern.

 

I pull up to the parking area. An officer advises me to pull up. I stop just a few centimeters away from where the officer had pointed. He asked me to reverse. I did so and he told me to stop after a sec. I think it was just one of their mind games. He asked me to get all the documents I need and leave everything in the car including phone and laptop. He told me I cannot take my bag pack. Assembled all my documents in a plastic bag. He was surprised at the number of documents I had. I told him I just wanted to be extra careful. 

 

Went inside the interview room. Was advised to sign my name on a sheet of paper and sit down.

 

Got called up after 10-15 minutes.

Officer (interview room): So Mr, What are you upto?

Me: sorry?

 

Officer (interview room): What are you upto?

Me: I am travelling back to Naperville, IL. Gave him passport and I797.

 

Officer (interview room): What have you got there?

Me: Documents.

 

Officer (interview room): So you are here for I94?

Me: Yes.

 

Officer (interview room): Your previous visa expired?

Me: Yes. An extension was applied.

 

Officer (interview room): Ok, go ahead and take a seat. I will call you in sometime.

 

I waited for another 10 mins. 

Officer (interview room): Bud, step up, and present your 4 fingers.

I gave my fingerprints and took a sigh of relief.

 

Waited for another 5 mins.

Officer (interview room): Bud, you are all set. do you have anything to declare? 

Me: No

 

Officer (interview room):What car are you driving.

Me: Black, Chevy Malibu. 

 

I had not checked the rental car model in all the hurry. But I did not know another chevy model except for Malibu. I was actually driving a sonic. Fortunately, it did not create any issues as the officer did not verify it. 

Officer handed me the passport with the I-94 stapled. Checked it. Went back to the car and safely drove myself back into USA.

 

It was a fairly straight forward and hassle free experience. 

 

Thanks!