L1 to H4 COS - I 94 has expired

[debabrata15]

Hello All,

I need this urgent help advise. I am on H1 in US. My wife is currently working under L1B visa. The time lines are as given below.

L1B org. expired on : 08/16/2013
I-94 expired on: 08/16/2013
L1B extension applied on: 07/11/2013
L1B RFE received on: 07/24/2103
L1B RFE responsed: 10/16/2013
H1B Approved on: 06/24/2013

The problem:

We are expecting and she is 32 weeks pregnant now. So basically she can not travel outside of US now to get her H1b stamped which her employer is advising to do. So we thought of waiting for the extension decision (which mostly would take 60 days i.e. by 12/16/2013). If it is rejected, we would file her H4 visa.
But her employer says that because her I-94 is expired, she can not file a COS from L1B to H4, whereas my lawyer said we have work around.

Say we get rejection notice on Dec 16th, that is just 5 days before her due date and which is why she can not travel. I know that we are in a mess.
My last resort is to wait for L1B rejection and pray that it is either approved or gets delayed like 1 month post delivery. And then fly to India, get H1b stamped and come back.

Questions

1) Please advise what are our options
2) If she waits for 1 month after getting the rejection notice on 12/16/2013, how long she can stay in US without risking her re-entry i.e. via H1b stamping
3) Will she get barred from reentry to US, if she stays beyond the date of rejection
4) We can obtain a Doctor's letter specifying that she can not travel after 36 weeks. Will that help us to apply for COS even though I-94 has expired.

Please respond at the earliest as I am freaking out !!

[raghvi]

If I-94 has expired COS is not possible.

You will be out of status from 08/16/2013 onwards unless L1 extension is approved. Your H1 decision has no bearing on this.
As for pregnancy/other hardships USCIS rarely takes a lenient approach and will question why it took 3 Months to respond to an RFE? Your spouse is 32 weeks pregnant currently so truly speaking you knew about it on 07/11/2013 itself why then wasnt L1 extension filed under premium? These are some of the hard question USCIS can ask.

1. You dont have much options but to pray that your L1 extension decision, if in the negative comes as late as possible.
2. Technically 0 days, the longer the illegal stay the more difficult the return.
3. I think the ban kicks in for 3 years after 180 Days of illegal stay.
4. Doctor's letter is not of much use. But do keep it handy for future.

This is my opinion not legal advice.

[debabrata15]

If I-94 has expired COS is not possible.

You will be out of status from 08/16/2013 onwards unless L1 extension is approved. Your H1 decision has no bearing on this.
As for pregnancy/other hardships USCIS rarely takes a lenient approach and will question why it took 3 Months to respond to an RFE? Your spouse is 32 weeks pregnant currently so truly speaking you knew about it on 07/11/2013 itself why then wasnt L1 extension filed under premium? These are some of the hard question USCIS can ask.

1. You dont have much options but to pray that your L1 extension decision, if in the negative comes as late as possible.
2. Technically 0 days, the longer the illegal stay the more difficult the return.
3. I think the ban kicks in for 3 years after 180 Days of illegal stay.
4. Doctor's letter is not of much use. But do keep it handy for future.

This is my opinion not legal advice.

Thank you Raghvi.

Honestly, we did not have any hidden agendas. It is the way things worked out due to lack of information flow between us and the employer. Anyways, whats done is done. I have two follow on questions:

1) the 180 days of illegal stay stars counted from the day I-94 expired or the extension denial was received ?

2) On retrospect, as we still have 4 weeks buffer to hit the no-fly time, how likely or advisable is it to go India now and come back with stamping ?
We are not considering this option fearing that she might have problems to get in as she is showing big time now. The VO or IO would suspect her working in this condition. However, if we assume the risk of staying beyond denial (say 30 days) when she would be able to travel and come back with stamping

[raghvi]

1.from I94 expiry date.
2. I personally wouldn't advise traveling now purely from heath perspective. Your spouse and baby's health and well being should be more important than US visa and immigration. Ask the doctor and travel at the earliest after delivery if ext rejected. And when you go for next visa stamping explain the same to the visa officer. Try avoiding the 180 day out of status period. Which in your case might touch by Jan beginning if L1 ext is rejected.

This is my opinion not legal advice.