Am I out of status?

[dsugandhi]

Here is my situation:

I had a valid visa and I-94 (say 123 was the I-94 number) with company A till 06/14/2004.
I went to India on 12/25/2003 and submitted above I-94 at airport.
My company A applied for H1 extension on 01/12/2004 while I was in India.
I came back from India on 01/26/2004 and received new white I-94 (say 456 was the number) valid till 06/14/2004.
My H1 extension got approved on 06/07/2004 valid from 06/15/2004 till 12/22/2006 having I-94 valid till 12/22/2006 with 123 as number on I-94.
On 06/25/2004 I applied for H1 revalidation with in US and got 221(g) with following message.
“Your application is not clearly approvable at this time. Per regulations, you required a personal interview with a consular officer. You must apply for a new visa overseas at a US embassy or consulate that processes nonimmigrant visa applications.”
I am still working for company A and have to file 7th year extension as I belong to retrogress country.

I applied for my wife's H4 extension based on my above approved I-797, which got approved and also got revalidated till 12/22/2006 .

Am I out of status right now or still on H1 status?

 

[dsugandhi]

Please can anyone comment on above issue?

I am very nervous, alos if I am out of statu, how much will it affect my GC process? Any suggestion?

great_guru, GotPR? and all gurus please help...

Thanks,

 

[lookingintoit]

When your H-1B revalidation was not approved, I was wondering what action did you take since then.

I am afraid you (and your wife) are out-of-status since 06/14/2004. The reason why your wife's visa got extended is because, your new 456 I-94 was not submitted with the application. Obviously, you cannot take advantage of USCIS mistakes.

However, you might get away with it by just obfuscating your 456 I-94. But speak to an attorney immediately.

 

[GotPR?]

“Your application is not clearly approvable at this time. Per regulations, you required a personal interview with a consular officer. You must apply for a new visa overseas at a US embassy or consulate that processes nonimmigrant visa applications.”

Your revalidation was rejected, because you did not make it by deadline. Above statement saying "you required a personal interview w/ a consular officer" pretty much says revalidation in the US was over. They terminated it sometime middle of June 2004. I also missed deadline so that i remember.

Since you have entered the US with valid H1 stamp, and stil have valid I94 all the time, I do not think you are out of status.

Concerning I94 departure#, if # is different in case of change of status, you'll be in trouble as it means you left the US during petition is pending, but CIS does not say one can not travel during extension is pending. So, i guess it should not be a serious issue..
But double check with lawyer.

 

[dsugandhi]

Your revalidation was rejected, because you did not make it by deadline. Above statement saying "you required a personal interview w/ a consular officer" pretty much says revalidation in the US was over. They terminated it sometime middle of June 2004. I also missed deadline so that i remember.

Since you have entered the US with valid H1 stamp, and stil have valid I94 all the time, I do not think you are out of status.

Concerning I94 departure#, if # is different in case of change of status, you'll be in trouble as it means you left the US during petition is pending, but CIS does not say one can not travel during extension is pending. So, i guess it should not be a serious issue..
But double check with lawyer.

Hi GotPR?,

I applied for revalidation before the deadline. I also applied for my wife's H4 revalidation which got approved but mine got 221(g).
Actually my employer filled my H1 Extension petition while I was OUT OF US. H1 extension was approved with new I-94 valid till 12/22/2006 before even my old H1 visa expired.

I spoke with my Lawyer, she does not know the answer. That's why I am asking you gurus...

Thanks for your reply....

 

[Endeavour2003]

'out-of-status' unlikely in your case

Hi dsugandhi,

1. I don't think that this falls under 'out-of-status' case as you have maintained a legal status throughout. DOS denied you the Visa stamp while you were already in the US. Since Visa stamp is only relevant for entry into US you should theoritically be fine.

There could be other less serious complications esp for GC however which you need to clarify from a good and experienced lawyer immediately. Might turn out to be a "mountain of a molehill" but why take any chances when you are on the verge of your GC.

2. My lawyer had this to say when we filed our extension some time back "Just as a reminder, if you or your spouse leave the U.S. before the approval of the visa extension, the petition will be considered abandoned."

3. Why did your company file your extension when you were not in the US? Are they not aware of this rule? In my company even the HR assistant warned me the same thing as the lawyer.