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

B

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
 
1. You are out of status. You get a few days to leave, but not to change to another visa. Anythiong beetond 30 days you are risking your long term status

3. If the new approval does not come with I94, you need at least to go to the nearest POE and get an I94. Most likely they will direct you to get a stamp from a US consulate

Your lawyer is messing up a lot. File a complaint with AILA or ask employer to find a competent one.
 
If you do not get I-94 it is considered as over stay since 15 of Jan date on which your I-94 expired. If over stay more then 6 months you may subject to three years ban.
Do the H1 in premium processing. If you do not get I-94 you need to go out immediately and get stamped and come back.

Over stay might be viewed very seriously.
 
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
 
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