I-94 Expiratioin and Adjustment of Status

S

shivakb

Registered Users (C)
My I-94 card was expired ( out of status for 185 days, March 2000 - Sept 2000 ) when I was changing employers and I didn't pay attention and nobody else did. Now I am in the final stages of my I-485 and INS has sent me an RFE asking me the status an employment verification during that period.

I produced the pay stubs and the letter from the employer to the attorney but the attorney says that I am in a difficult situation.

Does anyone had this kind of problem ?

Will my I-485 will be approved ?

Thanks for your time.
 
Originally posted by shivakb
My I-94 card was expired ( out of status for 185 days, March 2000 - Sept 2000 ) when I was changing employers and I didn't pay attention and nobody else did. Now I am in the final stages of my I-485 and INS has sent me an RFE asking me the status an employment verification during that period.

I produced the pay stubs and the letter from the employer to the attorney but the attorney says that I am in a difficult situation.

Does anyone had this kind of problem ?

Will my I-485 will be approved ?

Thanks for your time.
Click to expand...

Your attorney is partly right. USCIS may consider you a case of 245(K). Consult and talk to him on these lines. Keep us posted.
 
Originally posted by shivakb
My I-94 card was expired ( out of status for 185 days, March 2000 - Sept 2000 ) when I was changing employers and I didn't pay attention and nobody else did. Now I am in the final stages of my I-485 and INS has sent me an RFE asking me the status an employment verification during that period.

I produced the pay stubs and the letter from the employer to the attorney but the attorney says that I am in a difficult situation.

Does anyone had this kind of problem ?

Will my I-485 will be approved ?

Thanks for your time.
Click to expand...
Please explain us what is meant I-94 expiered. Did you work without H1?
 
Re: Re: I-94 Expiratioin and Adjustment of Status

Originally posted by tammy2
Please explain us what is meant I-94 expiered. Did you work without H1?
Click to expand...

Came back to edit my post, but found this query. I was wondering about it too!
 
Ok ! Let me explain my case clearly.

Case Details:-

1. I went out of country on Jan 17th 1999 ( on H1B issued by employer: ABC) and returned on March 9, 1999. The I-94 I carried has an expiration date as of March 2000.

After I came back I joined the client XYZ whose H1B was issued around Jan, 27th. I could not carry this H1B because it was not with me when I left the country.

2. When I resigned XYZ and joined a consulting company, then that company issued a H1B around September 2000. Basically my I-94 was expired and the duration was more than 180 days ( 185 days to be exact). According to my attorney, the INS does not care about the new I-94 issued by the company XYZ because I never used it.

3. I started my GC process in 2000 through my wife and we are currently in the final stages. Now during my final stages of my GC process, the INS was asking my status and employment verification during that period( March 2000 - Sept 2000)

I have taken a latest employement verification letter from XYZ company and have also produced pay stubs during that period. The INS did not mention anything about the denial but my attorney is worried about it.

Is 245(K) can be used for my case ( out of status for more than 180 days ) ?

Thanks
 
shivakb,
I do not think you were out of status provided you applied for a Visa as soon as you left XYZ . You were doing a H-1 transfer and not applying for a new H-1. If you go and check all your H-1's from ABC ,XYZ and the current one you will notice a I-94 at the right hand bottom corner of the orginal H-1 approval.
As long as that date was current and you had applied for an H-1 from the present company ( it might have taken even a year to get approved) you are in status.
Please look up your H-1's and post the applied date, approval date and the I-94 expiration date as written on the notice and not the one stamped on your passport.
 
I was under the impression that I am not out of status because there was no gap in my employment period and H1B were issued and stamped in the passport in a timely fashion but I didn't know so far that INS does not care about the I-94 issued by the company XYZ because it was never used.


Anyway here are the details of my H1B


Petioner Notice Date Valid From - To

ABC June 1997 July 1997 - March 2000

XYZ Jan 1999 Jan 1999 - May 2001

Consulting Sept 2000 Sept 2000 - May 2003


Thank for your time.
 
But Did u work and receive paystubs from Company XYZ?

Originally posted by shivakb
I was under the impression that I am not out of status because there was no gap in my employment period and H1B were issued and stamped in the passport in a timely fashion but I didn't know so far that INS does not care about the I-94 issued by the company XYZ because it was never used.


Anyway here are the details of my H1B


Petioner Notice Date Valid From - To

ABC June 1997 July 1997 - March 2000

XYZ Jan 1999 Jan 1999 - May 2001

Consulting Sept 2000 Sept 2000 - May 2003


Thank for your time.
Click to expand...


As far as I know, u seem to be ok. Guess, i think u need to get 2nd opinion and maybe need to change lawyer. Unless u r travelling as long as u have approval, it is sufficient.
 
shivakb,
The H-1's look fine. Please post the I-94 dates from the H-1 notice itself. Stamping in PP is a formality for Visa and may have nothing to do with your status. As suggested by OmGV maybe it is time to get another lawyer .
HTH.
 
omGV,

I was very much working during that period and I produced the pay stubs and employment verification letter from XYZ to my attonery.

Gambler,

The I-94 dates on the lower portion of the H1B approval notices have the same validity dates as mentioned in my previous post.

My attorney is concerned because "my LAST ARRIVAL RECORD (I-94) shows the expiration date as March 2000. INS cares only the departure/arrival records that we use use when we go out of country. In my case the H1 was issued prior to my arrival into the country. So they don't consider it. My next H1 was issued in Sept 2000."

Let me know if you have any comments.
 
You seem to be OK

I'm not a lawyer but from my understanding, just like many folks already mentioned above, you are OK.

The departure/arrival record should not have anything to do with your status within the country...particully the period you were working for XYZ which was legal based on the H1 XYZ applied for you. If you had been out of status during that period, you would have been working for XYZ illegally.

So yeah, you may want to change the lawyer...
 
Originally posted by shivakb
but I didn't know so far that INS does not care about the I-94 issued by the company XYZ because it was never used.

Click to expand...

It was never used??? You said, you joined the company XYZ for a brief period of time. As long as you are using approved H1B for the XYZ company, you are in status, it does not matter whether you used that I-94 for travel.
 
I-94

Shivakb,

I-94 is merely an arrival departure document. Mostly used only when you travel. You get a new one everytime you enter the country with a new date.

If you notice... as part of your H1 application process, if you are in the country you are supposed to provide a copy of your I-94 doc. INS then records its number and links the new I-94 number attached on your approval notice. Which now has a new date - same as your H1 expiration date.

You are absolutely IN status as along as you have not overstayed the new date. If applied for another H1 (extension or New) same theory applies - no matter you travelled abroad using your earlier I-94 or not.

Hope this helps.

R....
I am not an attorney, please consult an immigration attorney for all your immigration questions.
 
Thank you all whoever spared their time.

The following is the INS query

BEGIN RFE

"There appears to be a gap in your status and your employment authorization. Your form I-94 authorizes your stay from March
1999, to March 2000 and your next extension after
March 1999 ( to work for Consulting company) has a validity period of Sept 2000 to May , 2003. Therefore there is a period between March 4, 2000 and Sept 9,2000 when you are in the United Status without status and without employment authorization.

Please note, your extension to work for XYZ was granted prior to your last entry and was not reflected in the validity period given on your form I-94. Please submit proof of status and employment authorization between March 4, 2000 and Sept 9, 2000. "

END OF RFE

The INS might have issued prior to my departure ( which they did Jan, 1999) but I didn't receive it before I departed the country.
 
I think that you need to prove to INS that you were legally employed with XYZ during the period in question. Give copies of the H-1's and pay stubs for that duration. Also, if possible attach a letter from your employer XYZ then stating you worked from /to and were on vacation etc when you went to India.
HTH
 
I think the key question here is: were you working for company XYZ or for Consulting company between March and Sept 2000?

If you worked for company XYZ and can produce the paystubs for the period with XYZ, then that coupled with a copy of your Visa approval notice for company XYZ (with validity from Jan 1999 - May 2001) is all you need to prove that you were in status during the period in question.

If you started working with Consulting company BEFORE sept 2000 for some reason - i.e. started working for them before your Visa application with them was even filed, then you are in deep trouble. Hopefully, this is not the case.

Good luck and let us know how things turn out.
 
Better get a second opinion from another lawyer.

Originally posted by shivakb
Thank you all whoever spared their time.

The following is the INS query

BEGIN RFE

"There appears to be a gap in your status and your employment authorization. Your form I-94 authorizes your stay from March
1999, to March 2000 and your next extension after
March 1999 ( to work for Consulting company) has a validity period of Sept 2000 to May , 2003. Therefore there is a period between March 4, 2000 and Sept 9,2000 when you are in the United Status without status and without employment authorization.

Please note, your extension to work for XYZ was granted prior to your last entry and was not reflected in the validity period given on your form I-94. Please submit proof of status and employment authorization between March 4, 2000 and Sept 9, 2000. "

END OF RFE

The INS might have issued prior to my departure ( which they did Jan, 1999) but I didn't receive it before I departed the country.
Click to expand...

Since INS seems to be realizing that u worked for XYZ and still asking a particular question, it is better to get another lawyer and draft a reply. Normally, I-94 is for visa stamping and as long as u had a valid visa, ur travelling is not a problem.
Ur being in status depends on H1-B approval, which u had and also worked for that company and have paystubs.
It boils downs to getting a good lawyer and giving a proper explanation.

Also be careful in what u state. I-94 is not issued by the company but the INS, as part of H1-B approval.
 
herenow said:

"were you working for company XYZ or for Consulting company between March and Sept 2000? "

avihs:

Yes I am working for XYZ and I gave the attorney the pay stubs and the employment verification letter taken recently from them to prove that I am working during that period.
 
In that case, you have nothing to worry about Shiva. Just keep the copies of the paystubs and the Visa approval notice (the employer's letter is not as important as the paystubs since the paystubs show for certain you were employed and receiving pay by XYZ during that period).
If your lawyer is not prepared to prepare the response to the RFE, insist that he give you all the documents pertaining to the case (easier said than done, I know, in the case of some lawyers) and take them to a new lawyer.

Do not delay the response to the RFE. It will only delay your case. You must be on the verge of getting approved, once you send in the response.
 
Yes You were out of status

As your visa was issued before your entry in US you have overriden the visa issued on Jan 27th .So when you enter the country the H1 which you used was valid till March2000 and that would be the expiration date of your visa as well.In case if you have received your visa after entering the country like April 2000 then it is valid.
I can give you an example how do you went out of status,Suppose you have applied H1 from India and you got married and got H4 and entered the country,but you H1 was issued before you entered the country then when you enter the country in H4 your H1 visa will no longer be in use until you apply for change of status using the H1 visa which was issued before you enter the country.

The same thing have happened in your case as well in the same visa category.
I have heard this story from my friend as he went out of status the same way as your case.
 
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