URGENT: H1B Petition approved, while out of status present in US

[Laura Schoebel]

I came to the US on F1 in 2008. I completed my 4 year degree and was granted OPT for a year. Toward the end of my OPT my company (I will call it Company A for future reference) applied for H1B and got approved. My OPT ended May 2013, but was extended until October 2013 due to the granted H1B petition. I was employed until December 2013 under H1B with Company A. They decided to terminate my position. I was scheduled to travel to Germany for Christmas to see my family, like i do every year usually, and during that stay I would have scheduled the H1B interview at the US embassy - but due to my being let go right before Christmas I did not depart the US. By February Company B offered me a new job and also petitioned for my new H1B visa, which got approved. I have not departed the US since January 2013, which I know means as of right now that I am not unlawfully present but out of status. (The I-94 in my passport is still from the F-1, which I'm guessing is not valid anymore) My plan is to fly to Germany mid-September (2.5 months from now) to attend the interview for the H1B at the embassy in Frankfurt.

Now my questions:

1) Will my visa approval be hindered by the fact that I have not left the US immediately after I was terminated, or at the very least after I found a new employer who petitioned for my H1B? Meaning, should I depart the US as soon as possible? (which by the way is a lot easier said than done).

2) How much damage to the H1B approval have I already done by staying until now, and how much more damage (if any) will it do if I stay until mid-september?

3) My passport expired in May. Will the German embassy issue me a new one, even if I'm out of status? If not, what is the best course of action here?

4) Can anyone think of ANY reason that justifies me staying in the US for 6 months after I legally should have returned home?

I am not trying to cheat the system, and yes, the reason I stayed is personal preference and comfort (as in: finically smarter, relationship-wise, a car loan that's not paid off, lease agreement, and honestly because I did not see the necessity to completely end my life in the US if the plan was to come back in October anyway and my H1B petition from my company had already been approved).

I am very thankful to anyone for any advice they may be able to give me and again: I'm really not trying to cheat the system, I was simply not aware enough that my continued stay in the US could potentially hurt my H1B case.

Thanks guys

[kadkhiq81]

URGENT: H1B Petition approved, while out of status present in US

What was your H1 I 94 after the COS from F1 to H1? It would be great if you give the exact date of all your approved petition and the duration.

If I understand correctly, you were not paid/out of status during the period of Jan 2013 - Feb 2013 and you have started working for new employer since Feb 2013. If that's the case, you are out of status for 30-45 days (not sure about the exact days as it was not provided) and not the entire stay until now.

1. You are out of status only for the period that you are not being paid and not for your entire stay as you have already transferred to EMP B and hope you are getting paid since then.

2. I don't think it would be a huge issue and you can explain the officer that you were searching for a job and could not leave immediately after A terminated you. Again, no one can predict what would be the out come however I am sure you can hope the best.

3. You are currently not out of status and your embassy should renew the passport for sure.

4. You don't have to leave immediately as you are not out of status currently.

This is my opinion.

[Laura Schoebel]

What was your H1 I 94 after the COS from F1 to H1? It would be great if you give the exact date of all your approved petition and the duration.
I still have the F-1 I-94 in my passport that states D/S (Duration of status)

If I understand correctly, you were not paid/out of status during the period of Jan 2013 - Feb 2013 and you have started working for new employer since Feb 2013. If that's the case, you are out of status for 30-45 days (not sure about the exact days as it was not provided) and not the entire stay until now.
No, I am still not employed. They can't employ me until I leave for Germany to get the Visa Stamp in my passport, because I have been out of status.

1. You are out of status only for the period that you are not being paid and not for your entire stay as you have already transferred to EMP B and hope you are getting paid since then.
I have not transferred to B. Nobody ever told me I should. I was let go in December and have not adjusted my status since, but remained in the United States.

2. I don't think it would be a huge issue and you can explain the officer that you were searching for a job and could not leave immediately after A terminated you. Again, no one can predict what would be the out come however I am sure you can hope the best.

3. You are currently not out of status and your embassy should renew the passport for sure.

4. You don't have to leave immediately as you are not out of status currently.

This is my opinion.

Thanks so much for your answer, but unfortunately it's based on the assumption that I adjusted my status to B after being laid off on H1B. That didn't happen. My I-94 is D/S (duration of status) from the F-1 (not sure why to be honest, I think they should have sent me a new one when I adjusted my status to H1B in October but maybe I'm wrong). I know I'm out of status for sure, but I'm not unlawfully present.

[kadkhiq81]

URGENT: H1B Petition approved, while out of status present in US

If B's petition was approved as a COS, You would have received a new I 94 along with that approved petition. If yes, you are clear and you are out of status only during the period of employment between A and B.

If B's petition was approved as a consular process and not as a COS, then I am afraid that you will be in a trouble as you do not have any valid I 94 associated with the current status and your stay will be considered as an illegal.

I would recommend you to reach out to any good immigration lawyer immediately.

This is my opinion.

[Laura Schoebel]

If B's petition was approved as a COS, You would have received a new I 94 along with that approved petition. If yes, you are clear and you are out of status only during the period of employment between A and B.

If B's petition was approved as a consular process and not as a COS, then I am afraid that you will be in a trouble as you do not have any valid I 94 associated with the current status and your stay will be considered as an illegal.

I would recommend you to reach out to any good immigration lawyer immediately.

This is my opinion.

Thank you for your response. Again: I have not received a new I-94 after Company A was approved, nor after Company B was approved. I have an immigration attorney who advised me to leave the US immediately, but also could not tell me how much damage to the Visa approval my overstaying has already done. This is why I was looking at this forum to see if maybe someone else had a similar experience.

[ripendra007]

What was the stamping result by the way?????

What was the stamping result by the way?????

I came to the US on F1 in 2008. I completed my 4 year degree and was granted OPT for a year. Toward the end of my OPT my company (I will call it Company A for future reference) applied for H1B and got approved. My OPT ended May 2013, but was extended until October 2013 due to the granted H1B petition. I was employed until December 2013 under H1B with Company A. They decided to terminate my position. I was scheduled to travel to Germany for Christmas to see my family, like i do every year usually, and during that stay I would have scheduled the H1B interview at the US embassy - but due to my being let go right before Christmas I did not depart the US. By February Company B offered me a new job and also petitioned for my new H1B visa, which got approved. I have not departed the US since January 2013, which I know means as of right now that I am not unlawfully present but out of status. (The I-94 in my passport is still from the F-1, which I'm guessing is not valid anymore) My plan is to fly to Germany mid-September (2.5 months from now) to attend the interview for the H1B at the embassy in Frankfurt.

Now my questions:

1) Will my visa approval be hindered by the fact that I have not left the US immediately after I was terminated, or at the very least after I found a new employer who petitioned for my H1B? Meaning, should I depart the US as soon as possible? (which by the way is a lot easier said than done).

2) How much damage to the H1B approval have I already done by staying until now, and how much more damage (if any) will it do if I stay until mid-september?

3) My passport expired in May. Will the German embassy issue me a new one, even if I'm out of status? If not, what is the best course of action here?

4) Can anyone think of ANY reason that justifies me staying in the US for 6 months after I legally should have returned home?

I am not trying to cheat the system, and yes, the reason I stayed is personal preference and comfort (as in: finically smarter, relationship-wise, a car loan that's not paid off, lease agreement, and honestly because I did not see the necessity to completely end my life in the US if the plan was to come back in October anyway and my H1B petition from my company had already been approved).

I am very thankful to anyone for any advice they may be able to give me and again: I'm really not trying to cheat the system, I was simply not aware enough that my continued stay in the US could potentially hurt my H1B case.

Thanks guys