Renewing Expired H1B

[abhishek78]

Currently I'm on Pending I-485 AoS stage. My H1B has expired a little over a year ago. My previous employer didn't file for extension, as I got my EAD. Now, my current employer is asking me to switch back to H1B considering current administrations immigration law changing attempts.

Lawyer is telling me I MUST go back to home country and get a H1B visa, after the H1B petition gets approved.

My question is, is it really a must for me to leave US and get the visa? Can I not just change status to H1 and stay in US?

[uhgar]

Currently I'm on Pending I-485 AoS stage. My H1B has expired a little over a year ago. My previous employer didn't file for extension, as I got my EAD. Now, my current employer is asking me to switch back to H1B considering current administrations immigration law changing attempts.

Lawyer is telling me I MUST go back to home country and get a H1B visa, after the H1B petition gets approved.

My question is, is it really a must for me to leave US and get the visa? Can I not just change status to H1 and stay in US?

Check your I94 validity . If your I94 is still valid you can do Extension of Status. If your I94 is expired you don't have a valid status . You need to do consular processing which means getting it stamped and coming back using the visa to get valid I94

[abhishek78]

Check your I94 validity . If your I94 is still valid you can do Extension of Status. If your I94 is expired you don't have a valid status . You need to do consular processing which means getting it stamped and coming back using the visa to get valid I94

My I94 has expired over a year ago itself along with my H1B.

Why do you say I don't have a valid status? Doesn't having pending I-485 AoS automatically changes status to that when H1 expires? (https://berardiimmigrationlaw.com/ad...-pending-faqs/)

Also, my understanding is visa is just permit to enter USA. If I'm already in USA, why do I need to apply for visa? It should be a simple change of status from Pending I485 AoS to H1B. Isn't it?

[newacct]

My I94 has expired over a year ago itself along with my H1B.

Why do you say I don't have a valid status? Doesn't having pending I-485 AoS automatically changes status to that when H1 expires? (https://berardiimmigrationlaw.com/ad...-pending-faqs/)

Also, my understanding is visa is just permit to enter USA. If I'm already in USA, why do I need to apply for visa? It should be a simple change of status from Pending I485 AoS to H1B. Isn't it?

Having a pending application doesn't give you a status. When your old status expired or was violated, you don't have status anymore. It's just that you can stay in the US with a pending I-485 regardless of whether you have status or not.

Normally, you must be in status to apply for a Change of Status or Extension of Status. That's why they probably don't think you can do Change of Status into H1b now. But things are a little murky with H1b on pending AOS, because the "Cronin memo" stated that people who had H1b prior to leaving the US on Advance Parole, if they returned to the US on Advance Parole, they were paroled (not admitted into H1b), and therefore had no status after entry, but they could later change or extend status back to H1b. I never understood the logic of why a Change of Status is allowed in that case, so perhaps it might also be allowed in other cases for someone on I-485 pending with no status. That's something for lawyers to figure out. In any case, the only way to change or extend status into H1b is by your company filing I-129, so if they are unwilling to do it, there is nothing you can do.

[abhishek78]

Having a pending application doesn't give you a status. When your old status expired or was violated, you don't have status anymore. It's just that you can stay in the US with a pending I-485 regardless of whether you have status or not.

Normally, you must be in status to apply for a Change of Status or Extension of Status. That's why they probably don't think you can do Change of Status into H1b now. But things are a little murky with H1b on pending AOS, because the "Cronin memo" stated that people who had H1b prior to leaving the US on Advance Parole, if they returned to the US on Advance Parole, they were paroled (not admitted into H1b), and therefore had no status after entry, but they could later change or extend status back to H1b. I never understood the logic of why a Change of Status is allowed in that case, so perhaps it might also be allowed in other cases for someone on I-485 pending with no status. That's something for lawyers to figure out. In any case, the only way to change or extend status into H1b is by your company filing I-129, so if they are unwilling to do it, there is nothing you can do.

Thanks for your reply.

Yes, my employer is proceeding with filing for H1B. I'm just trying to understand if going back to home country to get visa is absolutely mandatory or it can be avoided. Correct me if I misunderstood, from your answer it seems its unavoidable, if getting H1 status is really not going to be considered as change of status.