Help - latest I-94 expired

[mgh2001]

Immigration gurus,

Please help...

I have an approved H-1 petition with valid I-94 issued in Feb 2001 ( valid thru Feb 2004). When re-entering the U.S in February 2002, the INS officer only saw my visa stamp (valid through July 13, 2002) and issued me an I-94 valid through Jul 13, 2002. I was under the impression that I was ok due to my petition/attached I-94 being valid through 2004.

Just learnt last week, that per the last action rule I am probably out of status as of Jul 13, although the underlying petition (and attached I-94) is valid through Feb 2004. Contacted my company lawyers and they immediately indicated they will be filing an extension of status with premium processing, but it is up to the INS to decide what to do. Im under the 180-day limit currently, and have always worked for the same company.

If the INS approves the extension without an I-94, will I be able to leave the country and come back on my existing visa stamp on my passport ( subsequent to re-entry I have renewed my visa stamp with the State dept. - again valid through Feb 2004)

Am I in trouble? Is there anyone else who has gone through this and came out ok??

 

[jaxen]

Lawyer is wrong

If it was the mistake of the POE inspector then you can file I102 in the nearest POE or INS office or INS district office and get this corrected. (If the chronology described by you is true).

If INS approves the h1 petition without I94, you can go out and come back and get new I94 without any problem, since you were never out of status.

 

[mgh2001]

Jaxen,

Greatly appreciate your prompt response. My lawyers cautioned me against going to the local INS office and much rather petition the INS directly through premium processing, mainly because:

1. Since the I-94 on my passport is currently expired, the local INS office may not recognize that the older I-94 which came with petition is valid, and ask me to depart immediately.

2. It is almost impossible to prove whose fault it was at the POE. In either case, it is incumbent on the H-1B folder to always maintain status. It would have been ok to go back to the POE if the newer I-94 had not expired.

3. Its better to do premium processing, as we will have an answer within 15 days - and would not cause the 180-day rule to be in effect. Filing regular would take 3-4 months, and if the INS denies the petition, we would already be beyond 180 days.

I hope you're right and the new extension petition gets approved without any hassles. Are you aware of any other forum members who have had this issue and come out ok?