I-94 Expired, H1B Extension and Stamping

[usergan123]

Initially I got my L1 approved with I-94 valid till Apr, 2010 and I was working with my L1 employer till December,2009.

My H1 got approved on October 2009 and valid date till October 2010 without COS. My employer failed to apply for COS on time. I am staying in US after my I-94 expiry date on 15, April 2010. So I need to go out of US, India to get H1 stamped and re-enter.

My employer says I can stay in US still 6 months after I-94 expiry (grace period). My employer is planning to apply for H1 extension (premium processing) now as my current H1 is valid till October 2010 asking me to go India after that and comeback. He is also suggesting me to go for Mumbai Consulate of stamping instead of Chennai Consulate (my nearest) as there will be less scrutiny .

Which one is more important for me? Whether to leave now immeditaley ASAP (around 1 month after I-94 expiry) or wait for my H1 extension ( around 2 month after I-94 expiry) and go to India?

Can you please advise me on this. Also which Indian consulate (Chennai Vs Mumbai) is better to get my H1 stamped?

[usergan123]

Which should be I more concerned about? Either staying more days (more than a month) after 1-94 expiry or Only 4 months available in current H1 work for?

[shervin143]

You are already in deep trouble. What I-94 are you talking about? The I-94 that came with your L1 extension is of no use now as you no longer work for the L1 employer. You are technically out of status on L1. Your employment iwth the H1B employer is totally illegal. For your to work for the H1B employer a COS from L1 to H1B should have been filed or you should have gone out of the country, get the H1B stamped and returned back.

There is no such thing as grace period. From your post I believe that your employer should be a consulting company who is trying to make as much money as possible by using you.

Any extension or transfer from within is not possible in your case. The only possibility is to get your H1B stamped. If you are lucky, you might get your H1B stamped successfully after being out of status for such a long time.

At least now, you are out of status which is much than being illegal. If you stay past your I-94 expiry date, then you are illegal which will cause more issues.

[sujaym_1981]

I think overstaying should be your concern, and it will affect your future visa

[usergan123]

You are already in deep trouble. What I-94 are you talking about? The I-94 that came with your L1 extension is of no use now as you no longer work for the L1 employer. You are technically out of status on L1. Your employment iwth the H1B employer is totally illegal. For your to work for the H1B employer a COS from L1 to H1B should have been filed or you should have gone out of the country, get the H1B stamped and returned back.

>> Technically you are correct. But only the day after I-94 (Apr-15) my stay here will be considered as illegal right. Doing reentry after 1 month illegal stay or 2 month illegal (waiting for H1 extension) will have any impact?

There is no such thing as grace period. From your post I believe that your employer should be a consulting company who is trying to make as much money as possible by using you.

>> Agreed. But I can't do anything against him. I am trying my best now as my employer already messed up with my L1 to H1 COS on time.

Any extension or transfer from within is not possible in your case. The only possibility is to get your H1B stamped. If you are lucky, you might get your H1B stamped successfully after being out of status for such a long time.

>> My employer is asking to stay here few more day and go for reeentry after H1 extension as he is applying now. Can't he apply for extesion now as per your comments? Does this extension will any way increase my chance of successful reentry or weaken as my illegal stay days are increasing?

At least now, you are out of status which is much than being illegal. If you stay past your I-94 expiry date, then you are illegal which will cause more issues.

[shervin143]

The more the illegal presence the more trouble you will be. This will show up in your records and will reduce the changes of extensions, new petitions and h1b stamping. If yu stay illegally for 6 months, your will get an automatic 3 year ban. If you stay illegally for more than 1 year, you will get an automatic 10 year ban. If the your illegal presenceis less than 6 months, then it is in the hands of the VO to decide whether to grant you visa or not.

Bythe way, how in the world is your employer applying for your H1B extension when you are technically not in H1B status and when you don't have any L1 pay slips? The chances of a successful extension or a COS is very less.

whether to wait and watch or to leave immediately is upto you.

[usergan123]

The more the illegal presence the more trouble you will be. This will show up in your records and will reduce the changes of extensions, new petitions and h1b stamping. If yu stay illegally for 6 months, your will get an automatic 3 year ban. If you stay illegally for more than 1 year, you will get an automatic 10 year ban. If the your illegal presenceis less than 6 months, then it is in the hands of the VO to decide whether to grant you visa or not.

Bythe way, how in the world is your employer applying for your H1B extension when you are technically not in H1B status and when you don't have any L1 pay slips? The chances of a successful extension or a COS is very less.

whether to wait and watch or to leave immediately is upto you.

>> I am asked my Employer's Attorney the same question how he can apply to extension without Payslip's and I-94 expiry. He says, we are not applying for I-94 extension, so payslips are not needed. He is only going to apply for extension of H1 approval from Oct,2010 to two more years. After that I will go back and come in (re-enter) with new I-94 based on approval date I have.

[shervin143]

If they are not going to apply for an I-94 (extension of stay), then in what grounds are they asking you to stay in the country with an expired I-94. You are messing up all your chances to get back to U.S in the future by accumulating illegal stay. The company wouldn't loose anything if you were not able to come back. It's you who will be in trouble later. Like mentioned earlier, leave the country immediately. When the extension gets approved, go for the stamping and return back. Whatever money that you are earning with the H1B employer now is totally illegal as you don't have the authroization (status) to work for that employer.

[UKannan]

>> I am asked my Employer's Attorney the same question how he can apply to extension without Payslip's and I-94 expiry. He says, we are not applying for I-94 extension, so payslips are not needed. He is only going to apply for extension of H1 approval from Oct,2010 to two more years. After that I will go back and come in (re-enter) with new I-94 based on approval date I have.

If you know all the rules, what additional info you are trying to get from here?

[usergan123]

If they are not going to apply for an I-94 (extension of stay), then in what grounds are they asking you to stay in the country with an expired I-94. You are messing up all your chances to get back to U.S in the future by accumulating illegal stay. The company wouldn't loose anything if you were not able to come back. It's you who will be in trouble later. Like mentioned earlier, leave the country immediately. When the extension gets approved, go for the stamping and return back. Whatever money that you are earning with the H1B employer now is totally illegal as you don't have the authroization (status) to work for that employer.

>> Thanks a lot for your suggestion Shervin. I am trying to leave US ASAP and planning to go for stamping after extension gets approved.

[usergan123]

Any Future impacts?

I have reentered US, with H1 stamping. My H1 is expiring on Oct,2010. Now my employer have applied for extension.

Please let me know if my previous 6 month out status in L1 and 1 month illegal stay after 1-94 expiry, will have affect my impacts on my future petitions, extensions or GC processing or W2 or else?

[shervin143]

No one can predict. It may, if they ask for all your W2 and check your records for over stay.

Please let me know if my previous 6 month out status in L1 and 1 month illegal stay after 1-94 expiry, will have affect my impacts on my future petitions, extensions or GC processing or W2 or else?