Do I have to go back? HELP SOON !!!!!!

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bhartiya_12

Registered Users (C)
I had my 1st H1 which expired on 15th Jan, 2004. My new prospective employer messed up on applying for an transfer/extension before the 15th. He said he forgot that my date of expiry was 15th. It was a big fiasco and his lawyer says that we cannot apply for a transfer now as it will be rejected even though it was just a few days late.

Anyway, so he applied for a new H1 last week which he says should be approved soon(within this week according to him). I spoke to his lawyer who said they have applied showing that the prospective employee is in India and want me to go back to India and then come back after getting the stamp from there.

I am very reluctant to go back as I had never expected that he would mess up like this and secondly I am taking classes which will suffer. The biggest worry for me is that if my visa is refused in India I will be stuck there.

My wife is here on her H1 which is valid for the next 2 1/2 years almost.

Here are my few questions:

1. Since my 1st H1 has expired and I am waiting for the 2nd one to be approved this coming week am I out of status now? Don't we get some days (I thought it was 30 or 60 days) to get a new H1 and if we got one within that time I would not be considered out of status?

2. What is my status currently?

3. Do I absolutely have to go to India to get a visa stamp or if we get the approval next week or soon is that enough for me to continue to stay here?

4. Is there a way for me to stay here legally on the new H1 I get and not go to India until I want to go to India?

Please respond soon. I am very worried.

Thanks
 
I had my 1st H1 which expired on 15th Jan, 2004. My new prospective employer messed up on applying for an transfer/extension before the 15th. He said he forgot that my date of expiry was 15th. It was a big fiasco and his lawyer says that we cannot apply for a transfer now as it will be rejected even though it was just a few days late.
----- That is correct USCIS may not transfer HI, but the lawyer/employer can apply for NEW FRESH H1 and the cap for new H1 may reach before employer files, file ASAP with premium processing( PP may be stopped in few days)
Anyway, so he applied for a new H1 last week which he says should be approved soon(within this week according to him).
---- May be if he applies through premium processing, if not applied through PP may be under cap and not be processed early, many lawyers have posted that Cap may reach in 3-4 weeks, if that happens then your H1b will be approved later
I spoke to his lawyer who said they have applied showing that the prospective employee is in India and want me to go back to India and then come back after getting the stamp from there.
------------- He is trying to mess up the case by lying to USCIS, tera lawyer ullu ki dum lagta hai, koi Bihari hai kiya?
I am very reluctant to go back as I had never expected that he would mess up like this and secondly I am taking classes which will suffer. The biggest worry for me is that if my visa is refused in India I will be stuck there.

My wife is here on her H1, which is valid for the next 2 1/2 years almost.

Here are my few questions:

1. Since my 1st H1 has expired and I am waiting for the 2nd one to be approved this coming week am I out of status now?
----- You are out of status now because you H1b is not filed as transfer or extension that was supposed to be filed before your I-94 expiry date. New H1 filing does not give to any status

Don't we get some days (I thought it was 30 or 60 days) to get a new H1 and if we got one within that time I would not be considered out of status?
---- No such law/regulation
2. What is my status currently?
---- Out of status and staying illegally in US, your stay is illegal from the day your I-94 expired

3. Do I absolutely have to go to India to get a visa stamp or if we get the approval next week or soon is that enough for me to continue to stay here?
----- YES, if you get new H1 approved, if I am in your situation I will leave now and wait out of US for H1 approval and once approved get it to be mailed in India then will get H1 visa stamp and re-enter, by staying in US you are adding illegal stay days to you
4. Is there a way for me to stay here legally on the new H1 I get and not go to India until I want to go to India?
----- You have to leave and it seems to me you have 2 options get H1 approval out of US get Visa then enter
OR go out get H4 visa stamp based on your wife H1 and come back on H4 then file Change of status from H4 to H1 and with change of status you will get I-94 extended.
 
One of my friends had a similar situation. His employer started his GC process and he got his EAD within 3-4 months and then he applied for advance parole and got it and was able to travel to india and back without having to go to an US embassy in India or anywhere else.

Is that a posibility under these circumstances? Do they ask for I-94 when starting the GC process i.e labor certification stage or when filing for I-140/485 later when labor is approved? Also do they ask for I-94 for advance parole application?

Please respond soon. Thanks
 
Also if I do have to go out can I go to Canada and get stamping done instead of going to India?

Are US consulates in Canada accepting people for H1 stamping or does everyone have to go to India or their home country?

Thanks
 
One of my friends had a similar situation. His employer started his GC process and he got his EAD within 3-4 months and then he applied for advance parole and got it and was able to travel to india and back without having to go to an US embassy in India or anywhere else.

---- You friend situation may be different. if the LC for you is approved then you can file I-140, I-485,EAD AP, that is not the case with you.

Is that a possibility under these circumstances? Do they ask for I-94 when starting the GC process i.e labor certification stage or when filing for I-140/485 later when labor is approved?
----- Yes, valid status or valid I-94 is needed to file I-485
Also do they ask for I-94 for advance parole application?
---- AP is based on pending I-485, and for filing I-485 you need valid I-94
Also if I do have to go out can I go to Canada and get stamping done instead of going to India?
----- Many got stamping from Canada but if refused you have to go directly to India from Canada
Are US consulates in Canada accepting people for H1 stamping or does everyone have to go to India or their home country?
---read above
 
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Could I have problems when leaving from here if I go for stamping? Also what about visa stamping in India? Could that be affected and can I go to Canada if that is any easier? Can the embassy find out that I overstayed when I go for stamping to India/Canada?

My employer says they can get labor approved in 2 months based on the current time trends in Pittsburg where they are.

If I get labor approved in 2 months and apply for EAD/AP and get it in a few months then I don't have to go out now even though my I-94 has expired. Is that feasable?

Thanks
 
Could I have problems when leaving from here if I go for stamping?
----- Don’t see any problems if you leave now but the record of your departure will be in the system
Also what about visa stamping in India? Could that be affected and can I go to Canada if that is any easier?

----- Dear, your employer has filed NEW H1B and you may be aware that H1B cap may reached soon and they may not approve your NEW H1 now if H1cap is reached, if your employer/lawyer received newH1 filing receipt he can still pay the premium processing and attach newH1B filing receipt then you stand a chance that New h1B may be approved in 15-20 days (remember they can now stop Premium processing any day) if you get H1B approved then go to US consulate in India get H1 visa stamp and come back if it is Chennai US consulate then they ask truck load of documents for H1 stamp read the past threads
Can the embassy find out that I overstayed when I go for stamping to India/Canada?
----- if they wish they can find out every info related to you. I don’t think it will be problem if your out of status stay is less than 180 days. If I am in your situation I will leave US immediately and will not add illegal days to my stay. No body can give you guarantee that Canada or India will stamp the H1visa in XYZ days all depends on Visa officers and the mood of visa officer is not posted in news papers like stock market

My employer says they can get labor approved in 2 months based on the current time trends in Pittsburg where they are.
----- They SAY can they get? Let them file it, LC can be filed for a person who is out of US as LC is for future job and nothing to do with H1B

If I get labor approved in 2 months and apply for EAD/AP and get it in a few months then I don't have to go out now even though my I-94 has expired.

--------- You cannot file I-140 I-485 with out valid I-94
*** One can file I-140 with out LC or with out I-94 being out of US in EB1 (extraordinary ability), if you are a film director, actor, and have National Award and writings about you in news papers, you can file EB1 in Arts and it is less rigorous than science, research field. I don’t think you qualify for EB1 or NIW

** in my opinion you should leave ASAP and request your lawyer to send premium processing and wait out of US for the H1 approval notice


Jaldi bhagoooo
 
Thanks for the info.

It seems from yr response that my bigger problem might be when I come back here after getting the visa at port of entry since the office here at port of entry will most definitely know that I overstayed even if the embassy in India does not know. By the way I have to apply in delhi. Any feedback on the H1 cases there in terms of what they usually ask?

If the immigration officer on port of entry asks me about why I overstayed can and should I clearly say that my employer screwed up instead of coming up with stories. He actually forgot to remember that my expiry date was 15th. Usually will they deny entry based on a few days overstay? I understand its their discretion but whats the general practice/experience in such cases.

I am also taking courses in a masters program so I am guessing I should take some documents from the school also which show that if that helps my case for visa or on return at port of entry.

Please respond soon

Thanks
 
Also my employer says my H1 should come by thursday and they have applied for Premium processing. So I can go to India on friday or saturday with the document.
 
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