Probability of H1 Rejection

S

sulekha

New Member
I want to travel India and before coming back I need to get stamp my visa as H1 visa. My earlier stamp is of H4 which is expired in Dec 2002.

My lawyer is saying that there is a little risk if I goto India in coming back to USA. I want a second opinion in this. I am already working here.

I will narrate my case in brief...

My husband came to USA (alone) in October 2000. I was in India and my H1 visa process started.

In between I came to USA on H4 and stayed at home. H4 was valid till Dec 2002

In March 2001 my H1 got approved and I started working in April 2001, when I recd Approval Notice.

In June 2002 I noticed that my approval notice does not have I-94 so I asked my company about it. On seeing my approval notice my lawer told me that I was actually supposed to go to India in April 2001 for stamping before taking up a job as the visa was initiated in India and that was just approval notice and not the visa so I should have taken I-94 from there. Since the time it was discovered it was no use of travel to india as lot of time was already passed and due to other medical reason travel was not feasible. Later on company refiled ( changed my address and filed amendment) on the same visa. The approval notice again came in Sept 2002. This time the approval notice had I-94 in this. Which is valid till Dec 2003.
Please note that during all these period I was continously working with the same company. And technically I was working on H4 till Sept 2002.

But as my lawyer says that after Sept 2002 I am OK.

I could not go to India to get my passport stamped ... was that so serious that my H1 will be denied ? Actually I was not knowing that I should go back to India before I take up the job as other people also start working if they get H1. But my case was just different as it was initiated when I was in India so the first approval came without I-94. And that time the lawyer was different who did not see my approval notice carefully as he was not actually an Immigrant lawyer.

Please advise ... can I travel in June 2003 or not ?

Or should I wait till my EAD (Green Card - Advance Payrole) to come as my lawyer is suggesting.

I will be really thankful if I get the reply.
 
You cannot work onH4 ( U said U were working on h4 till dec 2002 ). But You have GOT H1 at that time.

H1/H4 are status to stay here
Visa is for border crossing ( legally I mean )
Both are different.

You want to go to India... ? then get visa, a new one on your valid H1 there an dre-enter
or
If you get AP,and EAD mean while use them
 
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Sulekha,
Same story happened to me but the difference is i applied for H1 after coming here on H4. My lawyer asked me not to visit India until i get EAD/AP. Now, even after getting my EAD/AP i am worried to go with AP and i am waiting for my approval.
Anyway, if i were you i will wait until i get EAD/AP. Why to take risk with INS.
This is my opinion talk to your lawyer before making desicion.
PS
 
sulekha,

this is a serious issue. Technically, you have been working without authorization for some extensive period of time (which may have effectively been a violation of non-immigrant status). This may have severe consequences beginning with your AOS being denied (due to unauthorized employment, that is).

Unfortunately, I have no advice for you as to what to do. Given the circumstances, I would not move a muscle to do something about the situation, especially leaving the country. You see, if INS considers your unauthorized working time period as a violation of non-immigrant status, you will be easily barred from re-entry for 10 years. Then again, this would prevent you from getting a Green Card as well, because you can not even pay a penalty under 245(i) for unauthorized stay (furthermore, I am not sure if it covers unauthorized employment).

At this point, you would probably want a legal advice from another immigration attorney. Believe me, in a situation like this it will worth the money spent. And then you will have to decide what to believe and what to do.
 
reply

A friend had a problem

He had a valid H1 visa till June 2001 He applied for extension and got the extension in time before June 2001 expiry. He did not stamp it in passport (He could have sent it to washington etc)

This was due to his being on bench at that time and not drawing any salary.

One year passed and by then it was not possible to send the documents to Washington to stamp visa onto the passport.

After a long time he got another job and then in December 2002 went to India to get married.

He thought it would be a cake walk to get the visa stamped in his passport in Mumbai, India.

After marriage he went to consulate and there got the surprise of his life. He had the valid extension etc etc but consulate asked him for some additional information and asked him to return with additional documentation after 3 weeks. He returned with required documents after 3 weeks and they asked him for some more papers and the drama has continued for 5 months.

He is still stuck in India and his company here has asked him to work temporarily in their Mumbai, India office. He is still maintaining his apartment , car, bank account here in USA

The US Consulate is not bound to stamp your visa in the passport easily and my guess is this is because of current recession in the IT field.

Please check with other sources before taking your decision.
 
Thanks all for response !!

Actually I will again give some clarification ... I started working in April 2001 but my H1 Visa Approval was already approved in March 2001. I have the H1 Approval Notice of that time period also ... But unfortunately that was just not enough to begin the job and also my company's lawyer was not knowing this... Had that H1 process beein initiated with the address (of USA my husband's) it would not have a problem. Or my company could have called (phone) to INS just to change my address after I landed here on H4 .. It was just this much to do for which now I am suffering. I have called INS to know about this in last year. I was here in Dec 2000 and Visa was approved in March 2001. It could have been amended in that time period also. Anyway in short I started working only after H1 approval but slight issues were discovered later.

Now it got reapproved II time when I-94 also came and it does not require me to leave the country now.

Also someone please inform what info they want in Visa application form ? Do they ask employment start date ? My company's immigrant (now new one) lawyer not sure what date I should give. Even in my GC I have given start date as April 2001 and it seems if query comes my company's old lawyer ( still there at very senior position) will take responsibility stating as all happened due to his mistake.

Till last 9 months I am working on fully valid visa and have all full valid paystubs etc. Will this not help in getting H1 stamp. Already I have booked tkts with family (spouse and kid). I am so confused as I was never in my life.
 
Hi Sulekha,

My suggestion is to find a laywer for this situation(working issue).

You still have chance to win back. I remember the immigration law states you are not deemed to be unauthorized worker if the fault is "due to technical reasons". You also can find this item on your I-765/485 form. It seems that it is partially due to your company's fault.

So my advise is to find an experience laywer to define " the technical reasons" for you.

Duke
 
sulekha,

again, before leaving the country I advise you to consult with another lawyer just to have a second opinion on the whole mess you are in right now. Or as duke_of_ca suggests, find a lawyer who specializes in unauthorized work loopholes.

You are seriously risking leaving the country because you may unknowingly activate 10 year entry bar. If this is the case, you would have to refrain from travelling until you get your Green Card (even on Advance Parole).

Don't take the situation lightly. This is not a "slight issue", as you try to put it. The fact that you had an approved visa (H-1B) at some point means exactly squat, because you were in another status (H-4), which bears no benefit of employment at all. And change of address with INS (whatever that means) would not help you as well, because what you needed was a filing for a change of non-immigrant status from H-4 to H-1B.
 
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The bad news regarding the approved H1 is this:

It was not filed as COS (change of status), so your status continued to be H4, regardless of the approval. Had you got that H1 stamped on your passport and entered on the strength of it, your status would have been H1.

I'm no lawyer, so get legal advice.

One piece of advice I will give: do not travel outside USA.
 
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