Does it consider as out of status

G

gettingourgc

Registered Users (C)
Hi,

I was on L1 and worked for my previous employer until Aug 2004. In the meanwhile I applied H-1 through a consultancy company and my H-1 was approved and start date is Oct 2004. On Sept I had a major neck surgery and I am on medical leave until April 2005. I have valid H-1 but I havent joined the company because of medical reason (I am not in my current employer payroll). I have all the doctor's certificate, medical records and also the doctor is an American Doctor (top surgeon). Also I am getting disability (like unemployment for PR) from my state employment department. I have valid status also I am earning. Is my case consider as out of status. If so I am out of status for more than 180 days? What will happen when I apply for 485. Will I get RFE regarding this or will it be denyed or changed to counsular processing without giving a chance for our explanation. If I get RFE since I have a valid medical reason will my case consdier for 485.

I came here on May 2001 and after taht I never gone outside of US. Also the count to 180 days starts from the last entry date to the country. If I use automatic visa revalidation (I have valid I-94 and expired visa and old I-94) and visit canada and comeback will that consider as my last entry?

Any input is highly appreciated.
 
Strictly speaking, you have been out of status since Sept 2004. But you could argue that given your medical conditions, the violation is out of your control. The best way is to go out of the country and apply for H1 visa and return to U.S. BEFORE you file your I-485. The visa revaliation is no longer available. Even if it were, you would not be qaulified becuase you have changed your status from L1 to H1.
 
hi

gettingourgc said:
Hi,

I was on L1 and worked for my previous employer until Aug 2004. In the meanwhile I applied H-1 through a consultancy company and my H-1 was approved and start date is Oct 2004. On Sept I had a major neck surgery and I am on medical leave until April 2005. I have valid H-1 but I havent joined the company because of medical reason (I am not in my current employer payroll). I have all the doctor's certificate, medical records and also the doctor is an American Doctor (top surgeon). Also I am getting disability (like unemployment for PR) from my state employment department. I have valid status also I am earning. Is my case consider as out of status. If so I am out of status for more than 180 days? What will happen when I apply for 485. Will I get RFE regarding this or will it be denyed or changed to counsular processing without giving a chance for our explanation. If I get RFE since I have a valid medical reason will my case consdier for 485.

I came here on May 2001 and after taht I never gone outside of US. Also the count to 180 days starts from the last entry date to the country. If I use automatic visa revalidation (I have valid I-94 and expired visa and old I-94) and visit canada and comeback will that consider as my last entry?

Any input is highly appreciated.
Click to expand...

note: when you apply for 485 AOS also make sure that being on disability does not back fire as being public charge/state liability ... just a thought (...consult a good attorney... get opinion from a few about all questions...)
 
Will this out of status cause any problem for H-1 stamping

Since I dont have payslip for past 7 months, will it have any problem if I go for stamping. I am not planning to go now, join the project work for 5 or 6 mths and have the payslip, then planning to go for stamping. Will I face any problem during stamping as I dont have payslip for these months. Do I have to go to India for stamping or can I go to Canada or Mexico for stamping. Is it enough if I go out and get the stamping or does my husband also has to go out and get stamping. Our main concern is my husband doesnt have engineering degree and also not in IT and also work for a small American company. So we worried if he goes for stamping and if get rejected? One more question, how come INS knows that I am out of status (no pay slip for few months on H-1). INS will verify only the I-94 and visas. Will INS check IRS regarding payroll and payslip. I have last year W-2 and filed tax and will get this year W-2.

Any ideas is highly appreicated.
 
gettingourgc said:
Since I dont have payslip for past 7 months, will it have any problem if I go for stamping. I am not planning to go now, join the project work for 5 or 6 mths and have the payslip, then planning to go for stamping. Will I face any problem during stamping as I dont have payslip for these months. Do I have to go to India for stamping or can I go to Canada or Mexico for stamping. Is it enough if I go out and get the stamping or does my husband also has to go out and get stamping. Our main concern is my husband doesnt have engineering degree and also not in IT and also work for a small American company. So we worried if he goes for stamping and if get rejected? One more question, how come INS knows that I am out of status (no pay slip for few months on H-1). INS will verify only the I-94 and visas. Will INS check IRS regarding payroll and payslip. I have last year W-2 and filed tax and will get this year W-2.

Any ideas is highly appreicated.
Click to expand...

1. There is a question on NIV application form "have you ever violated the term of your visa...". What would you answer?

2. Once you have violated your status, you need to go back to your home country to get NIV. You cannot go to Canada or Mexico instead.

3. When you go to apply your NIV, bring all your medical records, doctors' letter to prove that violation of status is due to medical reasons. Then you should not have problem if everything else is in order

4. What is husband's status? If he is on his own H1 with good standing, he does not need to go.

5. During COS, EOS or AOS, INS may request pay stabs or tax returns which may show your income is under what is specificed in your LCA . INS may also check with SSA to find out.

6. You may not have to leave the country. I would consult with a lawyer
 
Last edited by a moderator:
thanks for the response

Hi

Thanks for the response. But the stamping which I meant is H-1 stamping. Is this out of status (no payslip for more than 7 mths) will create any problem for my H-1 stamping in India. Can I go to Canada or Mexico for my H-1 stamping (prev visa is L-1). I have MCA degree and have 8 years of IT experience. My only concern is stamping problem in any consulate at India. My husband is currently on H-1 before that he was on L2 (my dependent) and was working on EAD. One more question what is NIV.

Thanks
 
gettingourgc said:
Hi

Thanks for the response. But the stamping which I meant is H-1 stamping. Is this out of status (no payslip for more than 7 mths) will create any problem for my H-1 stamping in India. Can I go to Canada or Mexico for my H-1 stamping (prev visa is L-1). I have MCA degree and have 8 years of IT experience. My only concern is stamping problem in any consulate at India. My husband is currently on H-1 before that he was on L2 (my dependent) and was working on EAD. One more question what is NIV.

Thanks
Click to expand...

It is not the visa stamping. Check whether you overstayed your I-94. You get an I-94 when you enter US and whenever you change or extend your status.
If you have not overstayed your I-94 there should not be any problems.

You should have changed your status to H4.
 
gettingourgc said:
Hi

Thanks for the response. But the stamping which I meant is H-1 stamping. Is this out of status (no payslip for more than 7 mths) will create any problem for my H-1 stamping in India. Can I go to Canada or Mexico for my H-1 stamping (prev visa is L-1). I have MCA degree and have 8 years of IT experience. My only concern is stamping problem in any consulate at India. My husband is currently on H-1 before that he was on L2 (my dependent) and was working on EAD. One more question what is NIV.

Thanks
Click to expand...

H-1 stamping means you apply for H-1 non-immigrant visa (NIV) at a U.S. consulate, for which you need to submit filled NIV application forms (DS156 and DS157) along with your H1 approval notice and supproting documents from your company. Once you have violated your status, you cannot go to a third country but only your home country to apply for an NIV. If you go to Canada or Mexico, you will be denied for a visa and you are not allowed to return to U.S. and have to go back to India directly from there.

The question is how the U.S. consulate in Canada or Mxico gets to know whether you have violated your status. They may ask for your past tax returns or pay stubs. But the real tricky thing is you have to answer the question in DS156 "have you ever violated the term of your visa...". If you answer no, you risk of being lying, that is a bigger problem. If you answer yes, then you could be automatically denied although you may explain that violation was due to medical reason. So the better way is to go back to india to apply for H1 NIV. But I would suggest you consult with a lawyer first before you go.
 
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