Confused over the BCIS response on I-94 validity status..

A

atokhi

Registered Users (C)
Hello,

I am here on H-1B and my wife is on H4, both valid upto May 2005. We got our visa stamps from Toronto and while coming back, the official stamped our I-94 cards only upto May 2003. This was an error as he should have written May 2004 because that is when my passport expires. Anyway, since then, I have travelled abroad and got new I-94 card valid upto May 2005, same has the validity of my H1 visa but my wife still had May 2003 date on her I-94.

My company had applied for the extention of non immigrant status for her (I-539) in March 2003 and recently the BCIS declined that application. BCIS stated that my wife was already in status valid up to May 2005 based on the I-94 card attached with I-797 (H-4 visa approval notice) and no useful purpose will be served in acting on this application. Now, my company attorney feels that my wife still needs to get a new I-94 card with correct stamp and she needs to go out of the country for that She says that this is required as my Green Card process is under way and she may face problems if she doesn't have a new updated card. Now to the questioins:

1. I am confused. When BCIS has itself acknowledged that she is in status until 2005, why does she have to go aborad and get a new I-94 card. Doesn't the I-94 card that comes with I-797 superceed the while I-94 card that is stamped at POE? Atleast that is what is evident from the BCIS response.

2. When we went to Tornonto to get visa stamps, we surrendered the original I-94 cards that came with I-797 forms while leaving the country. I do have the photocopies of the original I-797 forms (with I-94 cards attached) though. Will it make any difference in the future?

Thanks a lot for your help.
 
What ur lawyer says is correct. Ur wife needs to go out of the country immidiately, to get a new I-94.

I-94 determines the valid stay in US.

Ur latest I-94 is the one at POE and not the one which came with the approval notice.

So, according to that, ur wife's I-94 had expired in may 2003 - it is already 2 months since it expired. So, immidiately go out of the country and at the POE u will get a new I-94 based on the visa stamp - which will be valid till may 2005.
 
Thanks for your response badobo. Actually I shared the same view as you have stated but the response from BCIS and a personal experience of one of my friend confused me. As I had mentioned, the response from BCIS clearly states that my wife is in status until May 2005 and there is no need to extend the validity of her stay.

Secondly, one of my friend and his wife came to US on H-1/H-4 tht was valid for 8 months only. They extended it a couple of times and finally got their green card. They never went out of the country during this time and so their original I-94 card had 8 months validity only. Still, the H-1/H-4 approval notices governed the validity of their status and they got the green card without any problems. Again, this is contradictory to my earlier assumption that the date of I-94 (white) card at POE decides the validity of stay.

I know I am being pushy but I wanted to clraigy some doubts I had in my mind.

Thanks a lot!
 
Ur friend's case and ur case are different.

Ur friend was in legal status.
1. He got I-94 at POE.
2. When he got his H1/H4 extended while in US - also got new I-94 with his extension. The new I-94 superceded his POE I-94.

Ur case,
1. Got I-94 with approval papers.
2. Then got I-94 at POE - so the POE I-94 superceded the one which came with the approval notice.
3. So in ur case - POE I-94 is the one which decided ur stay in US. 4. As the I-94 u got at POE has expired, u need to get a new I-94.

As the H4 is valid and also stamped in the passport - the BCIS has declined to extend it.
As u have H4 stamping in the passport, there will be no problem in getting a new I-94 at the POE. All u need is to go out and come into US again, as soon as possible.

I-94 determines ur valid stay in US.
U NEED A VALID I-94. ELSE WILL HAVE PROBLEM WITH GREEN CARD.
 
Even though ur wife has a valid visa stamping in the passport, an expired I-94 will create a lot of problems.
Get a new I-94 as soon as possible.
 
atokhi,

This is similar to typo error.all you need to do is visit Port of entry.
I live in boston area .My wife had similar problem we went to Logon airport INS POE and showed all the documents and they realized their mistake and corrected my spouse's I-94.This was in 1999.i don't know if the law has changed.If you have valid visa stamped in passport ,i don't think you will have problem.However,check with your attorney.Mistake as such happens regularly and get corrected.so don't get overwhelmed.you will be fine.
 
Thanks for all your responses. Badobo has explained the situation really nicely and its clear that my wife needs a new I-94. As you have suggested, the easiest way (and probably the only way) is to go to a POE and get a new I-94 issued. I would appreciate some more information in this regard.

Based on your responses, it seems I have two options:

  1. 1. I live in North Dakota and Canada border is only 3 hrs drive so I can drive to the POE at the border. Do I have to take a Canadian visa and actually go there to request a new I-94 while coming back or can I just visit the POE at the border and get a new I-94 card.

    2. As Pipladi had mentioned that he got it done by going to the Logon airport POE. I can also go to the Minneapolis airport POE but I am not sure whether one can still get a new I-94 by going to the airport POE and not actually leaving the country now.

    Please advise which option is better.
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    By the way, I had read on this forum that INS (or now BCIS) corrects its genuine mistakes given sufficient proof but for some reason my company's attorney advised me against it. She said it is really difficult to convince INS that they made a mistake otherwise I would have done it much earlier even before the I-94 for my wife would have expired. The attorney went for extending the non-immigrant stay which has since been declined as mentioned in my eariler message.
 
I think the 1 st option is better - this is my opinion. I am not sure of the second option, because it a long time since the expired I-94 was issued. I think u need a Canadian visa - check theCanadian consulate about whether u need Candian visa.
I-94 is issued for people who come into US - so I dont think u can get I-94 just by visiting the POE.
 
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