I-94 Expired - nunc pro tunc accepted - Success story


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I wanted to share my story for the benefit of anyone in the same situation. Heads up, its a long post. :)

Big Disclaimer: Every case is different, so, please do your own research and figure out what works best for you. This is just a story of how it worked for me. Plus, this is also not a fool proof process to 'take advantage of'. Dont do things willingly and expect to get away with it. Mine is a case of a genuine mistake, but a mistake nonetheless.

Timeline of events

2012 September - Company sponsored H1b, approved

2012 December - Visited India, got my H1b stamped, valid till 2015. Re-entered USA with Sept 2015 as I-94 expiry date

2014 January - Company applied for H1B extension. I797 Approval notice has new I-94 card with October 2016 is the expiry date

2014 November - I visited India, still with the same company and same job profile. I didnt go for fresh stamping because my previous stamp was still valid. I reenter USA. I dont notice that the new I-94 card they give me still has the previous expiry date of 2015 September. It should have been October 2016 because I did show them my I797 (Some forums tell me that even if you have a fresh I797, but dont get that stamped on your passport, your I94 will not have the renewed date. But some others disagree)

2015 September - MY I-94 expires. I dont realize.

2016 March - My Passport expired. So I get a renewed passport from USA

2016 March - Company started gathering data for H1b extension and realized my I-94 had expired, now for 6 months. I freaked out because I hadnt noticed it before. Also, I thought my I797 Approval Notice date always governed(which is Oct 2016) and I didnt think I was in trouble.

But it turns out there is a 'Last in time' rule where the latest 'action' governs. In my case I first got an I797 approval notice and then reentered USA when a new I94 record was created. SO the date on the new I94 is what mattered. So I indeed was in a pickle. I WAS OUT OF STATUS.s

Solution:  I visited the CBP (Center for Border Protection) at my airport AFTER calling them up and explaining my situation, as advised by my attorney. Fixed an appointment and went there with all the original documents in play at the time of my reentry to USA in 2014. Once again, explained to the Officer that it was my mistake I didnt notice the date on my I94 until it was too late, but the only reason I didnt bother to check was that I assumed the officer at POE had printed the date from my most recent I797 Approval notice. Officer agreed with me, was very nice and courteous and corrected the date. But he only corrected to the date my passport originally expired which was March 2016. He said he couldnt correct it to Oct 2016 since they need me to have had a valid passport at the time of reentry. The fact that I now have a renewed passport didnt matter. I thanked him profusely and walked out of there. So, my new I-94 now had a date in March 2016 as opposed to Sept 2015 which was a HUGE HELP.

I then printed out a 1-page letter explaining to USCIS, the mistake I did in understanding the date. A short, to-the-point letter, making sure I dont blame it on anyone else but myself, since it was indeed my mistake. I also assured that my record was clean and I have always been a law abiding citizen and hence I'd be grateful if USCIS gave me chance and reinstated my status, while promising to make sure this never happened again.
My attorney said they would also include a cover letter from their end with a bit of an explanation as well.

The petition was filed and I got an approval notice exactly 14 days later. I now have a valid I94 valid from the date after my passport expired to Oct 2016. I am so grateful to my attorneys and the CBP officer.

A lesson in the importance of I-94.

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