out of country when H1B extension is pending

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cannon576

Registered Users (C)
I called BCIS and talked to an immigration "officer" (not an operator) about my situation: I had to go out of country when my H1 extension was pending (it is still pending) and hence, I have a I94 different from the one I had when i filed in january. (my visa and i94 expires in july) SO, I asked him, will i be out of status if i stay beyond July?
Can i send a copy of my I94 to update my petition.?

He said: I need not worry about it. Though I went out of country, Since the application is still pending, i wont be out of status and the I94 that i get with the application approval notice will be valid to use.

But the impression i get from this forum is that i will be out of status if i stay beyond july. Which one to believe? Any suggestions?
 
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Right. Only thing you did wrong was to call BCIS and reveal your plans. Dumb is a mild word.
Anyway here is the way you fix this I94 issue:
1. File I102 to get new I94 in local office after H1 approval comes with old I94 or the nearest POE
2. Quickly visit a POE (canada) and get a new I94.

I94 determines your validity in USA. what if a traffic cop cuffs you because the I94 numbers dont match?
 
cannon576:
1 you filed for H1 extension and you attached the valid I-94 with your I-29 petition because you had that I-94 valid at that time (extension of status is not abandoned when you go out of US only Change of status gets abandoned)
2 after filing your H1 extension you went out of US and when you entered US you got new I-94
3 your extension is still pending and when you get your H1 extension you will get new I-94 attached with the approval
4 You are confused that your I-94 # that will come with approval will not match with the current I-94 # that is in your passport
How it can match? And why you expect it to match? And no need that it should match because you left US and got new I-94 and at the time you applied H1 extension you attached the copy of I-94 that was valid at that time. BCIS have every record when you left and when you enter and they know all your I-94 #. you may be confused that you may get the same # of I-94 extended that you submited to Airlines when you departed, it does not matter they have the record and that I-94 # had diffrent validity and even if you get the same I-94 # extended it does not matter the validity is important not the # becase the Airlines collected your I-94 it was sent to BCIS Computer update and your departure with that # and validity is in record. BCIS may also provide you new I-94 # with H1 extension
You have complied with the law; the I-94 you will get with your H1 extension will govern your status or the expiry of your legal stay in US. Till the time you don’t get H1 extension your I-94 that is in your passport is valid, even if that expires you are in status as you filed H1 extension on time before the expiry of your H1, you will be in status beyond July till you get H1 extension.
I don’t see any issue with your status

“I94 determines your validity in USA. what if a traffic cop cuffs you because the I94 numbers dont match?”
cannon576, has H1 extension filling receipt with him and that is enough proof that he complied with immigration law and Traffic cop has no job to match both I-94, even if after approval both I-94 don’t match the same # it does not matter.
 
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Thanks ginnu & jaxen
I did some more research and I found what ginnu says is true according to many sources.
I think, the last issued I-94 is valid and since, H1 extension is still pending the I-94 that would come with the approval will be the latest I94. If i had entered USA after the approval but with the old H1 then i will have problem as the last I94 will be valid only till July.
Quote from :
Temple University Office of International services

An alien who already holds H-1 B status is not prohibited from traveling abroad while an extension of stay petition is pending with the BCIS, provided s/he returns to the U.S. prior to the expiration of the current H-1B approval.
Click to expand...

Quote from:
USVisaNews.com FAQ
Under the new American Competitiveness in the 21st Century Act (AC21) law, INS guidance suggests you may travel with a transfer pending but not more than 10 days after the date that your original H-1B visa expired.
Click to expand...

Quote from:
LSU International Services Office
If you already hold H-1B status, you are permitted to travel abroad while an extension of stay petition is pending, provided you return to the U.S. before the expiration of the current H-1B approval. If your current H-1B approval expires while you are abroad, you will be forced to remain outside the U.S. until the H-1B extension application is approved and your department sends you the approval notice so that you may use it to apply for a new visa and enter the United States in H-1B status.
Click to expand...


I just want to dig out the truth and make sure that I am in status as i may have to go for CP interview in Oct/Nov this year. I know that i am not out of status atleast until July. The reason I talked to immigration officer is to find out whether they think I am in status or not. IF they had told me that I may have to update I94 or apply for new visa, i will have time to do that. But according to the immi officer, i am in status and the new I94 will be valid.

I understand that it will be a big problem if it had been a change of status application or if i landed after approval. Since its just extension (already on H1 with valid visa for reentry) and I landed before approval, i believe that i am safe. I may just have to keep a copy of all the documents including my I-94 for the future.
Do you agree?
 
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