Very short I-94 expired for 9 months

[soulmachine]

I'm a Chinese and I have a H-1B VISA. I started to work in US from October 2014, so 2017 is my third year in US. My I-797 is valid until Mar 2019.

I traveled out of US in December 2016 and went back to US on Dec 14 2016(San Francisco Airpot), my passport would expire on Jul 10 2017, there was about 7 months before my passport expired, but the CBP gave me a very short I-94 which expired on Jan 1 2017, only 16 days !!!

I renewed my passport later on and got a new passport on Feb 2 2017. In Feb 2017 I asked my current company's attorney to fix my I-94 but she said there was nothing to worry about then she did nothing, now my I-94 has expired for almost 9 months.

One month ago I got an offer from a new company and the new company started the H-1B transfer process for me, but their attorney found that my I-94 has already expired thus they sent a local agent to San Francisco CBP, this agent asked the CBP to update my I-94 but the CBP said there was no error about my I-94 so the CBP refused to update my I-94.

Without a valid I-94 I can not transfer to the new company, HELP

For now I have found three possible solutions:

1. Go to the San Francisco CBP and ask the CBP to update my I-94. Already tried and the CBP refused to update my I-94.
2. Travel out of US(Like Mexico) and go back again, to update my I-94. One big risk is that the US CBP may ban me for 3 to 10 years because I have a 9 months gap in my I-94, then I can not enter US in recent years, which would be a VERY bad case.
3. Ask my current employer to file I-129, to extend my stay in US. Haven't tried yet, but probably this would be Plan B.

[newacct]

You don't really have any good options.

CBP admitting you until January is correct because nonimmigrants entering the US are required to have a passport valid for 6 months beyond the end of their stay (except for passports for certain countries, and Mainland China is not among them); this basically means CBP must limit the date on the I-94 to no later than 6 months before the passport expires, which should be Jan 10 in your case.

You would trigger a 3-year ban if you leave the US at this point, because you have accrued 180 days of "unlawful presence". The ban is a matter of law and is not discretionary.

Your company could try Extension of Status but it may not work because you generally have to be in status to apply for extension or change of status. USCIS could accept late filings at their discretion, but they don't have to. Here they could argue that their lawyer screwed up, but I am not sure whether that would be a good enough reason. And a late filing won't stop you from accruing "unlawful presence" while it is pending, so it will continue to grow as you wait for a decision on your application, so you better hope that you get a decision before next January when you will have accrued 1 year of "unlawful presence", when you will have enough "unlawful presence to trigger a 10-year ban if you leave the US.

[soulmachine]

You don't really have any good options.

CBP admitting you until January is correct because nonimmigrants entering the US are required to have a passport valid for 6 months beyond the end of their stay (except for passports for certain countries, and Mainland China is not among them); this basically means CBP must limit the date on the I-94 to no later than 6 months before the passport expires, which should be Jan 10 in your case.

You would trigger a 3-year ban if you leave the US at this point, because you have accrued 180 days of "unlawful presence". The ban is a matter of law and is not discretionary.

Your company could try Extension of Status but it may not work because you generally have to be in status to apply for extension or change of status. USCIS could accept late filings at their discretion, but they don't have to. Here they could argue that their lawyer screwed up, but I am not sure whether that would be a good enough reason. And a late filing won't stop you from accruing "unlawful presence" while it is pending, so it will continue to grow as you wait for a decision on your application, so you better hope that you get a decision before next January when you will have accrued 1 year of "unlawful presence", when you will have enough "unlawful presence to trigger a 10-year ban if you leave the US.

Thanks for your reply.

For now I thought is like this, first, go to CBP again, maybe they are willing to update my I-94 to the expiration date of my old passport, if so, then I only have 3 months of unlawful stay in US.

If step 1 works, then I can travel out of US to get a new I-94 or ask my employer to fill I-129 immediately.

[newacct]

For now I thought is like this, first, go to CBP again, maybe they are willing to update my I-94 to the expiration date of my old passport, if so, then I only have 3 months of unlawful stay in US.

It's highly unlikely you would find a CBP officer who would do this, since the law requires them to limit it to 6 months before the passport expiration, so the officer would have to be confused or something to change it to the passport expiration.

If step 1 works, then I can travel out of US to get a new I-94 or ask my employer to fill I-129 immediately.

If step 1 works, you would need to get a new visa in China before you can come back because by staying past the date on the I-94 for even one day, your visa was automatically voided by INA 222(g), which also requires you to get US visas in your country of nationality from now on. But again, I highly doubt step 1 will work.

[soulmachine]

It's highly unlikely you would find a CBP officer who would do this, since the law requires them to limit it to 6 months before the passport expiration, so the officer would have to be confused or something to change it to the passport expiration.



If step 1 works, you would need to get a new visa in China before you can come back because by staying past the date on the I-94 for even one day, your visa was automatically voided by INA 222(g), which also requires you to get US visas in your country of nationality from now on. But again, I highly doubt step 1 will work.

I never realize this would be so messed up, I have been working in US for 3 years and I've already settled down in Bay Area with my wife and son, I don't want to lose my current life due to this tiny mistake.

For now I have to go to CBP and try again, meanwhile I'll ask my current employer to file I-129 to extend my stay in US.

Are there any other things that I can do to improve my situation? Thanks !

[raghvi]

I never realize this would be so messed up, I have been working in US for 3 years and I've already settled down in Bay Area with my wife and son, I don't want to lose my current life due to this tiny mistake.

For now I have to go to CBP and try again, meanwhile I'll ask my current employer to file I-129 to extend my stay in US.

Are there any other things that I can do to improve my situation? Thanks !

Get a good lawyer to apply for a nunc pro tunc extension of your I-94.

This is my opinion not legal advice.

[soulmachine]

Get a good lawyer to apply for a nunc pro tunc extension of your I-94.

This is my opinion not legal advice.

Got it, this solution appears the most number of times

[soulmachine]

Today I consulted a lawyer friend and she said there are two solutions, get the H-1B transfer or apply for Nunc Pro Tunc extension, despite I-94 expiration date, and see how USCIS decides the case. Either way is the same because it needs to be decided by USCIS. Only my current employer can do Nunc Pro Tunc extension and only my new employer can do the H-1B transfer.

I'm still wondering, which way has the highest probability of getting approved by USCIS ?

[raghvi]

Today I consulted a lawyer friend and she said there are two solutions, get the H-1B transfer or apply for Nunc Pro Tunc extension, despite I-94 expiration date, and see how USCIS decides the case. Either way is the same because it needs to be decided by USCIS. Only my current employer can do Nunc Pro Tunc extension and only my new employer can do the H-1B transfer.

I'm still wondering, which way has the highest probability of getting approved by USCIS ?

A nunc pro tunc as its being filed to correct a mistake done by your attorney. A transfer would eventually get stuck at you being out of status for so long.

This is my opinion not legal advice.

[drtom]

Expired I94

Hi
I have also the similar case.
My H1b renewal is filed, decision pending but my I-94 expired.
Will this impact in any sense ?

[sm244kibm]

soulmachine Have you resolved your issue? I am in the same situation.have you tried Nunc Pro Tunc? Can you tell me how you resolved your issue?Pls help