NEW THREAD FOR 420 -CSOFT-NJ based company

H1B stamping in Canada

Hello UN,

What happens if the H1B stamping is denied in Canada and do not have any valid visa / entry documents for returning to USA?

I am specifically asking this question as I do not have any Valid Visa on my Passport and my I 485 has been denied and am hoping get my 7th yrs H1B extn from another company where my labor is pending since 2003 and am aware of the necessity of going to Canada / Mexico for stamping as i would be changing my status from EAD to H1B.

I have not left US since 1999 ie since I came here from India.

Have you come across any such cases?

Look forward to your reply.
 
hiUS said:
Thanks for your help. Yeah, as you said i did not use the EAD, I am on H1 only with CST. only my wife used it. Infact I did not get my EAD, only 140 approved, anyways it is denied now.
Do you have any idea like, for how many days she can be in US after her 485 denial. I think she will be out of status as soon asshe gets the denial letter as she used her EAD.
I am not going to my previous employer, i have applied tthru differnet company for my transfer.
So, if she goes to India next week, can i send my new H1 to her by post and make her to show it in the POE for new I-94 when she comes back or she needs to be back on the old visa which is till Sep' 06 and apply for H4 with my new H1.
Do i need to check the validity of the stamping which is till Sep' 06 with my previous employer ( before joining CST H1)? In the sense will the stamping on her visa gets invalid if my porevious employer cancels the H1?
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If she is leaving country before your new H1-B approval, as you said you can send new approval in mail to her before she comes back. She already has valid stamp but if your previous employer has cancelled your H1 (so has H4), that could create a problem at POE. Personally, I wouldn't take this chance.

Yes, she is out of status from the day she received denial. However don't get panic to get stamp in her passport to convert back to H4 as 245(k) covers her for less than 180 days. But its advisable to do it sooner than later. don't jus rush before your H1-B transfer is approved.
 
hiUS said:
Thanks for your help. Yeah, as you said i did not use the EAD, I am on H1 only with CST. only my wife used it. Infact I did not get my EAD, only 140 approved, anyways it is denied now.
Do you have any idea like, for how many days she can be in US after her 485 denial. I think she will be out of status as soon asshe gets the denial letter as she used her EAD.
I am not going to my previous employer, i have applied tthru differnet company for my transfer.
So, if she goes to India next week, can i send my new H1 to her by post and make her to show it in the POE for new I-94 when she comes back or she needs to be back on the old visa which is till Sep' 06 and apply for H4 with my new H1.
Do i need to check the validity of the stamping which is till Sep' 06 with my previous employer ( before joining CST H1)? In the sense will the stamping on her visa gets invalid if my porevious employer cancels the H1?
Click to expand...
Listen, If I am not wrong....you should not be worried.

With CST you ARE having H1 and H4 with I94 expiring somewhere in 2006 (For both of you). Both of you applied for 485 and she has used EAD. Now EAD is denied...so she can't work (however lawyers say that approved EAD can be used until its expiration date though 485 is denied.....its a gray area. Based on your situation,......make a wise decision either to work or not.......). But however, her status doesn't become out-of-status (as UN / someone else mentioned earlier......I94 is the mask). You just apply for a fresh H1 transfer and H4 .......I don't think there is any need to go out of the country for her.......At any given stage....you need to have some or other valid document (like unexpired I94 or AOS status) which you both have.....

Yes...if your previous employer cancels yours H1 then stamping becomes invalid.
 
unitednations said:
One thing I forgot to mention about Canada; they won't give you a visitor visa unless you are in status in USA. Therefore, if 485 isn't pending (you could try to fool them when getting visa), or you don't have unexpired I-94 then you will have to go to India (not sure if rule is the same to go to mexico).
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However if one has unexpired I-94 with valid H1-B, there shouldn't be a problem in acquiring visitor visa. Eventhough your I-485 is denied but if you have valid I-94 with valid notice of action, shouldn't be an issue. UN please comment.
 
dyingforgc said:
If she is leaving country before your new H1-B approval, as you said you can send new approval in mail to her before she comes back. She already has valid stamp but if your previous employer has cancelled your H1 (so has H4), that could create a problem at POE. Personally, I wouldn't take this chance.

Yes, she is out of status from the day she received denial. However don't get panic to get stamp in her passport to convert back to H4 as 245(k) covers her for less than 180 days. But its advisable to do it sooner than later. don't jus rush before your H1-B transfer is approved.
Click to expand...

Thank you very much for your suggestions. I thought of rushing because i don't know like for how many days she can be in US after the 485 denial. As you said if it is for 180 days then i think i can wait till i get the new H1.
But it think i need to get her stamped in India ( i am planning to send her to India), if her previous stamping gets cancelled. Am i right?
Othere wise i think it is better to just go out of country and comeback to avoid the stamping problems in India. What do you say?
 
RE-HI Stamping in Canada

Thanks ,UN for your electric response.

This further complicates my situation as my I 485 is denied and since i am on EAD for the past 10 months ,do not have a valid US visa on my passport ..so if Mexico also does not give a Visitors Visa in such a situation the only option is to go to India and get the stamping...is there a way we can get this info for Mexico..have searched quite extensively but unable to get any info on this.


unitednations said:
One thing I forgot to mention about Canada; they won't give you a visitor visa unless you are in status in USA. Therefore, if 485 isn't pending (you could try to fool them when getting visa), or you don't have unexpired I-94 then you will have to go to India (not sure if rule is the same to go to mexico).
Click to expand...
 
unitednations said:
One thing I forgot to mention about Canada; they won't give you a visitor visa unless you are in status in USA. Therefore, if 485 isn't pending (you could try to fool them when getting visa), or you don't have unexpired I-94 then you will have to go to India (not sure if rule is the same to go to mexico).
Click to expand...
UN ....Please Enlighten me and most others.......Why all of the sudden everyone is concerned about travelling outside US to change the status (Especially derivatives)........I don't think its required.

Lets assumes someones' H4 I94 is expiring with Company A on DEC 31 2005. Used EAD between say APR 1 - SEP 30 (Assume Sep 30th 485 denied). Primary applied for either H1/H4 renewal or H1/H4 transfer.......if its approved....they don't have to be worried.

Most of the people with this company are in this status (they have unexpired I94 with either CST or some other company...which is revoked / cancelled).....I don't think ..they should panic and travel outside of US.
 
hiUS said:
Thank you very much for your suggestions. I thought of rushing because i don't know like for how many days she can be in US after the 485 denial. As you said if it is for 180 days then i think i can wait till i get the new H1.
But it think i need to get her stamped in India ( i am planning to send her to India), if her previous stamping gets cancelled. Am i right?
Othere wise i think it is better to just go out of country and comeback to avoid the stamping problems in India. What do you say?
Click to expand...

Since she has valid stamp and if you are really so worried you can send her to canada for a day. As soon as she comes back,she is again in H4 status. If she is travelling via road, they don't ask to submit I-94 while entering into canada and she would have same I-94 but with entry in her passport. Your choice. but again don't get panic and do not rush.
 
Kishore_l said:
Listen, If I am not wrong....you should not be worried.

With CST you ARE having H1 and H4 with I94 expiring somewhere in 2006 (For both of you). Both of you applied for 485 and she has used EAD. Now EAD is denied...so she can't work (however lawyers say that approved EAD can be used until its expiration date though 485 is denied.....its a gray area. Based on your situation,......make a wise decision either to work or not.......). But however, her status doesn't become out-of-status (as UN / someone else mentioned earlier......I94 is the mask). You just apply for a fresh H1 transfer and H4 .......I don't think there is any need to go out of the country for her.......At any given stage....you need to have some or other valid document (like unexpired I94 or AOS status) which you both have.....

Yes...if your previous employer cancels yours H1 then stamping becomes invalid.
Click to expand...

I came to know that I can't apply for H4 with my H1 as she was on EAD. TO get her status back to H4 i need to send out of country and come back with new I-94. mine and her visa is still Sep'06 from previous employer(before joining CST). And now I don't know whether the previous employer cancelled my h1 or not.
 
hiUS said:
I came to know that I can't apply for H4 with my H1 as she was on EAD. TO get her status back to H4 i need to send out of country and come back with new I-94. mine and her visa is still Sep'06 from previous employer(before joining CST). And now I don't know whether the previous employer cancelled my h1 or not.
Click to expand...

dude. don't get just panic. I don't see any problem with your wife getting back to H4. Yes, as your attorney said, you would have to send her out of US. no big deal. don't take chance with your existing visa stamp if you unsure whether your previous employer cancelled your H1 or not.
 
RE-Travelling outside of US for H1b Stamping,

Hello Kishore,

UN is correct.

My case.

1.Do not have a Valid H1B and I 94.

2.Have completed 6 yrs on H1B in Feb 05.

3.Was on EAD from Dec,04 to Sep 05.

4.140 and 485 denied 10 days back.

5.Trying to get a 7th yr H1B on the basis of a pending labor.

6.My wife and children also in the same boat.no H4 and I 94.

I understand going to Canada is also not an option as Visitor Visa will not be given in this situation..however not sure of Mexico on this..hope you gyus can throw some light on this.

Let me know if you can think of any other alternates other than travelling to India for new Visa stampings.



unitednations said:
Many of them h-1 expired. no i-94 card.

Most of the employees who went to C either needed an ead card for spouse or they had no pending labor and h-1 was running out or did run out.

Very few still have h-1 time left or unexpired I-94 card.
Click to expand...
 
Guys,

My understanding is VISA / Stamping in Passport is meant for mere travelling purpose.
EAD - is a temporary Work authorization (It doesn't authorize you stay / travel legally)
AP - is a mere travel document for emergency purpose while you are waiting for the status to be adjusted (its not a status)

1. Guys in H4 with unexpired I 94 can switch back to EAD & H4 without travelling. Infact USCIS would not even know, if you have used EAD for a short peiod of time.

2. Guys in H1 with unexpired I 94 (doesn;t matter with which company)....who has switched to EAD...doesn't have to travel outside to switch back to H1 with another company....

3. H1/H4 I94 expired......which means you are in AOS.....if 485 is denied then you need to get back to status........apply for 290b to your 140& 485, though for certain your 140 will be denied....but you just bought atleast 1 year worth of time from USCIS and meanwhile you can apply for H1 transfer through someother company or even fresh H1 (if your 6 years is not exhausted).....get 3 or 4 pay stubs...then travel to re-instate your status. As long as you have not exhausted all appeals (even if your 290b is denied...you can still go to the court.....though you know your case will be denied, but atleast you would have bought more time & you dont have to rush.

Infact, easily you can stay back for 3-5 years by just appealing and by then either you would made up your mind to go back for good or found other alternate venues or some miracle bill passed the congress which offers GC to anyone who paid taxes for 5 consecutive years with no criminal record. Don't panic guys.......
 
Kishore_l said:
UN ....Please Enlighten me and most others.......Why all of the sudden everyone is concerned about travelling outside US to change the status (Especially derivatives)........I don't think its required.

Lets assumes someones' H4 I94 is expiring with Company A on DEC 31 2005. Used EAD between say APR 1 - SEP 30 (Assume Sep 30th 485 denied). Primary applied for either H1/H4 renewal or H1/H4 transfer.......if its approved....they don't have to be worried.

Most of the people with this company are in this status (they have unexpired I94 with either CST or some other company...which is revoked / cancelled).....I don't think ..they should panic and travel outside of US.
Click to expand...

Once spouse started using EAD she looses H4 status or considered as not maintaining H4 status. But she will be in status authorised/granted by attorny general based on pending I485. So even if she has unexpired H4 I94 she will be considered that she is not in that status. So she cant extend the H4 status with in US. She may not be accruing illegal stay until that I94 is valid, but she does not hold any status after I485 denial. So its risky to stay in US without maintaining any status. Out of status or illegal stay has consequences like subject to deportation proceedings and visa problems at consulate offices. So it is better to avoid that stay.
 
Cyber_Victim200 said:
Hello Kishore,

UN is correct.

My case.

1.Do not have a Valid H1B and I 94.

2.Have completed 6 yrs on H1B in Feb 05.

3.Was on EAD from Dec,04 to Sep 05.

4.140 and 485 denied 10 days back.

5.Trying to get a 7th yr H1B on the basis of a pending labor.
Is this your Labor from Previous Employer or Substitute Labor from another employer?, please elaborate

6.My wife and children also in the same boat.no H4 and I 94.

I understand going to Canada is also not an option as Visitor Visa will not be given in this situation..however not sure of Mexico on this..hope you gyus can throw some light on this.

Let me know if you can think of any other alternates other than travelling to India for new Visa stampings.
Click to expand...
 
Cyber_Victim200 said:
Hello Kishore,

UN is correct.

My case.

1.Do not have a Valid H1B and I 94.

2.Have completed 6 yrs on H1B in Feb 05.

3.Was on EAD from Dec,04 to Sep 05.

4.140 and 485 denied 10 days back.

5.Trying to get a 7th yr H1B on the basis of a pending labor.

6.My wife and children also in the same boat.no H4 and I 94.

I understand going to Canada is also not an option as Visitor Visa will not be given in this situation..however not sure of Mexico on this..hope you gyus can throw some light on this.

Let me know if you can think of any other alternates other than travelling to India for new Visa stampings.
Click to expand...
I agree with UN...Ofcourse he has mastered Immigration law by now. But my take is, lets say if you have applied for H1 from a pending labor before stage 4......No issues. If you have applied for H1 between your 4th & 5th stages....time between 485 denial notice date & H1 application Notice date is considered out of status. But once your H1 is approved, which means you are forgiven (All the cases, I know of, it was forgiven..ofcourse my sampling number is very low,.....not like UN or others) and you just converted a "period" by USCIS into a "Comma". Ofcourse, if your work or family demands you to travel during this stage, you are screwed......otherwise it should not be a problem.

After you get your H1 renewed.......get atleast 3 or 4 paystubs ran through the new company before considering travel or H1/H4 stamping......
 
dyingforgc said:
Any experience of stamping H4 visa in canada/mexico US consulates ALONG with H1 stamping for the primary person? please share.
Click to expand...

I was told that they give visa only for people who are currently maintaining status in US. If out-of-status, they will not give visa and will ask to go to home country. In that case you will not be able to come back to US, you have to go to India from there.
 
NewVictim2005 said:
Once spouse started using EAD she looses H4 status or considered as not maintaining H4 status. But she will be in status authorised/granted by attorny general based on pending I485. So even if she has unexpired H4 I94 she will be considered that she is not in that status. So she cant extend the H4 status with in US. She may not be accruing illegal stay until that I94 is valid, but she does not hold any status after I485 denial. So its risky to stay in US without maintaining any status. Out of status or illegal stay has consequences like subject to deportation proceedings and visa problems at consulate offices. So it is better to avoid that stay.
Click to expand...
New Victim,

My understanding is EAD is a privellege of AOS, EAD is not a status. If your AOS staus is denied, then you lose all the privelleges coming along with that. But If you have unexpired I94...You are Perfectly fine. First of all, INS doesn't monitor when you are switching from EAD to H4 and back forth. Its near to impossible to track all those changes.

As UN has mentioned earlier, unexpired I94 is the mask. If you used your EAD while your I94 is not expired, USCIS will not know. At this point, they do not have the a system to connect INS & IRS (to check with your W9). To determine your legal stay, USCIS will be looking for a gap between I94 and if the gap is filled by AOS, you should be fine or if there is no gap then you don't have to worry.
 
rightnow i am working on EAD and no H1, 7th year H1 got expired on April 2005 and No H1/H4 now
suppose i get any preapproved labor and applied H1 for that Labor,if they approve H1 for 8th year withour I-94 then how can i work?


UN gave good points regarding this, but the company who wants to give pre approved labor wants me to be in H1 status instead of EAD, dont know what to do
 
NewVictim2005 said:
Once spouse started using EAD she looses H4 status or considered as not maintaining H4 status. But she will be in status authorised/granted by attorny general based on pending I485. So even if she has unexpired H4 I94 she will be considered that she is not in that status. So she cant extend the H4 status with in US. She may not be accruing illegal stay until that I94 is valid, but she does not hold any status after I485 denial. So its risky to stay in US without maintaining any status. Out of status or illegal stay has consequences like subject to deportation proceedings and visa problems at consulate offices. So it is better to avoid that stay.
Click to expand...
Lets assume.....someone is on H1 and got their EAd approved.......Used EAD to do parttime job (it has to be less than 20hr/week). Person is still in H1 status. He / She used the previllege of AOS, thats all. USCIS wouldn't even know this or they least botherd about it. I know few people who work under H1 and travel under AP without any issues. Its no different for a H4 to use EAD and stop using it after he/she loses the privellege. You can excerise your previllege anytime you want, it doesn't award you a status.
 
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