Status question

T

tuxedo

Registered Users (C)
Hi Gurus ,Please help me.
My Brother is going to apply his 140/485 soon( PD April 2001).
He had a problem with his I-94 while coming back from India in the year 2001.
Here are the details.

Went to India in Nov 2000 after laid off from the company A.(applied H1B transfer through Company B
before the layoffs).

Got his H1B transfer approved through Company B in Feb 2001 while he was in India and company B's
Lawyer sent the transferred H1B(797) document to India.

Came back to US in March 2001 to US by using company A's Visa Stamp in the passport.
At port of Entry showed the Company B's H1B document but some how POE officer put Company's A's
H1B end date which was July 2001 in the I-94.After that he has been working with Company B .

Went to India again in may 2002 on Company B H1B Visa Stamp and came back in July 2002.

He is worried about the period March 2001 till May 2002.Was he considered to be out of status.

Please let me know what to do if he was out of Status.

Thanks in Advance.
 
Do you have a valid I-94 between March 2001 and may 2002 ?
Do you have 2 different I-94s between this period?

Reason I am asking is My wife who was on H-4 has exactly similar issue and my lawer advised her not to travel outside USA.
 
yes

yes, He showed the company B's H1B(797) approval which has new i-94 (valid till nov 2003) attached to it but POE officer asked about company A's797 (because he travelled with company A's visa stamp) and put the date in the i-94 till july 2001.My brother didnt paid attention at that time and has been working with company B there after. He made a trip to India again in 2002 may.So we dont know whethere he was in status from march 2001 till may 2002 though he had a valid I-94 attached to the company B's H1B approval.Please gurus help.
 
tuxedo said:
Hi Gurus ,Please help me.
My Brother is going to apply his 140/485 soon( PD April 2001).
He had a problem with his I-94 while coming back from India in the year 2001.
Here are the details.

Went to India in Nov 2000 after laid off from the company A.(applied H1B transfer through Company B
before the layoffs).

Got his H1B transfer approved through Company B in Feb 2001 while he was in India and company B's
Lawyer sent the transferred H1B(797) document to India.

Came back to US in March 2001 to US by using company A's Visa Stamp in the passport.
At port of Entry showed the Company B's H1B document but some how POE officer put Company's A's
H1B end date which was July 2001 in the I-94.After that he has been working with Company B .

Went to India again in may 2002 on Company B H1B Visa Stamp and came back in July 2002.

He is worried about the period March 2001 till May 2002.Was he considered to be out of status.

Please let me know what to do if he was out of Status.

Thanks in Advance.
Click to expand...
You have 2 I-94s right? one with name of company A and other one from Company B. Your Company B I-94, which was attached to your I-797, shows the your validy in US. so no need to worry. i believe that when you went first time, you might given I-94 of Company A and came back. Also second time, you might given I-94 of Company B and come back on Company B. I dont see any problem.
 
thanks

Thanks Kamvp.
Yes , he did have 2 I-94's when he came back from India in 2001.
one on company A's(given at the POE)
Second one with Company B's (Attached to Company B's H1B extension).
there after he continued working with company B and went to India again in 2002 surrendered the I-94 of Company A(given at POE in 2001) and came back on company B.
 
Tuxedo,

Date 1: Laid off from Company A
Date 2: Left for India
Date 3: Recieved H1-B Approval document for Company B while in India
Date 4: Entered US on Company A's Visa stamp + Company A's I-797, POE gives I-94 pointing to Company A's I-797
Date 5: Travels to India again
Date 6: Returns to the US with Company B's Visa + Company B's I-797, POE gives I-94 pointing to Company B's I-797
Here Date 6 > Date 5 > Date 4 > Date 3 > Date 2 > Date 1

My analysis: Between Date 4 and Date 6, the status is certainly questionable and could be challenged by USCIS. It does not matter how many I-94's he held during this time(Kamvp, your reply is unfortunately incorrect); what matters is Company A's I-94 was active. In the eyes of the USCIS, they dont even know that he holds the I-797-with-I-94-attached from Company B up until Date 6

Suggestions: Keeping the timeframe between Date 4 and Date 6 as short as possible would certainly have helped. Another cloogy suggestion is, if we can somehow prove that Company A did not inform the USCIS of the H-1B cancelation untill a day after Date 4, he is okay. The reason I say that is companies typically give two months from the date of layoff notification to help non-immigrants find a job. Please take a careful look at Company A's layoff letter and see what it says about the immigration status.

I wish I could have given you a different reply, again, this is just my opinion, please do consult your lawyer but be armed with these facts and questions
 
Thanks a bunch pujar

Thankyou very much for your analysys pujar .
Company A didn't cancelled his H1B as it was expiring any way in july 2001(this is the day,i.e july 2001, he got in the I-94 while coming back from India in 2001 may).
We are worried about the period july 2001 till may 2002(went to India in May 2002 on Company B's H1B and suurendered comapny A's I-94 while going).

Please let us know what we can prepare in advance(remedies) If at all USCIS issues RFE .
Thanks in advance.
 
i see a problem. the first time when he came back from india should have been on the company B h1 approval not on the company A. that is a mistake. The visa stamp does not matter (that is a dept. of state jurisdiction for visa stamp its immaterial ). The H1 petition and I-94 matters from company B. and consult a good attorney (your own) pay some money and get a clarification.
 
tuxedo said:
Thankyou very much for your analysys pujar .
Company A didn't cancelled his H1B as it was expiring any way in july 2001(this is the day,i.e july 2001, he got in the I-94 while coming back from India in 2001 may).
We are worried about the period july 2001 till may 2002(went to India in May 2002 on Company B's H1B and suurendered comapny A's I-94 while going).

Please let us know what we can prepare in advance(remedies) If at all USCIS issues RFE .
Thanks in advance.
Click to expand...

Tuxedo,
The period of concern is between March 2001 and May 2002. In this period, he has a valid I-94 between March 2001 and July 2001 only and even that could be challenged by USCIS since the I-94 pointed to Company A while he was working for Company B. As for the period between July 2001 and May 2002, he has no active I-94.
I know this sounds like moot but had he worked even for one day, just one day with Company A after returning to the US in March 2001, the whole thing would be perfectly fine. Another thing that could have been done is that immediately after he entered US on company A's documents in March 2001, having realized the POE's mistake, he should have taken a quick trip to Canada; this way, you turn in the Company A's I-94 on your way out and re-enter on Company B's I-94. Anyways, not much can be gained by dwelling on the past.
Having said that, its a pretty tricky situation and yes, there is a likelihood of the USCIS issuing an RFE. Now, is he the primary applicant or the derivative. Its my general feeling, that USCIS scrutinizes such past status questions, a little more severely for primary applicants than derivatives (just my feeling)
As for the documents that you can prepare for, in anticipation of an RFE: Having realized the POE's mistake upon entering in March 2001, did he attempt to get it corrected like writing to USCIS or something like that? Those letters can help. If you can somehow prove (and I dont know how) that Company A re-invited him back to work for them after having laid him off, re-considered his employment, something to that effect might help. Please do consult a lawyer on that.
Again, my reply might not sound pleasent but I would rather give you straight facts than sugarcoat them.
 
no

Thanks again Pujar.

No he never worked for Company A after coming back from India in 2001.
And also he didnt write any letters to USCIS regarding this POE mistake.
But i heard USCIS concerns only the status from the last entry .
If its true then he should be fine.Can any one please clarify this.
And also have any body heard these kinda RFE's and remedies in the past.
Please help us.
Really appreciate your help.
 
tuxedo said:
Hi Gurus ,Please help me.
My Brother is going to apply his 140/485 soon( PD April 2001).
He had a problem with his I-94 while coming back from India in the year 2001.
Here are the details.

Went to India in Nov 2000 after laid off from the company A.(applied H1B transfer through Company B
before the layoffs).

Got his H1B transfer approved through Company B in Feb 2001 while he was in India and company B's
Lawyer sent the transferred H1B(797) document to India.

Came back to US in March 2001 to US by using company A's Visa Stamp in the passport.
At port of Entry showed the Company B's H1B document but some how POE officer put Company's A's
H1B end date which was July 2001 in the I-94.After that he has been working with Company B .

Went to India again in may 2002 on Company B H1B Visa Stamp and came back in July 2002.

He is worried about the period March 2001 till May 2002.Was he considered to be out of status.

Please let me know what to do if he was out of Status.

Thanks in Advance.
Click to expand...


Anyway since the PD is before April 30th 2001 he should not have the status problems. Initaly he can apply usual. If he gets RFE he can use 245(I) and get through. There is $1000 fees for 245(I) cases.
 
Last edited by a moderator:
again bad luck

was very happy when i saw tammy2's reply about 245i. just doubled checked the PD date with my brother and unfortunately it is not april 2001 but it is September 2001.
I heard from some body that USCIS only consideres the status from the last entry in to the US.Is this true.

Also Does USCIS checkes Previous I-94 records(485 stage).

Is this a solvable problem if we go to any competent attorney because this was a mistake.

Please gurus guide us.

Appreciate your help.
 
during I-485 application they want a biography of all of your employment history. when you were employed with whom when you enterred country when you left. All papers are looked at. MY green card was approved three months ago (i am waiting for my spouse approval). When we filed the application they wanted my I-20 copy, from my university education 10 years ago!When i left when i entered the country.
H1 is an employer dependent visa it becomes invalid as soon as you lose a job. (with a certain time period to leave the country after that). The date on the visa stamp on the passport is immaterial as it is a department of state stamp. DOS visa stamp on passport can be used for multiple employers but it is INS/POE immigration employer notation on their computer that matters. After having lost a job and coming back to the country on previous employers H1 visa papers(which technically is invalid), raises the question of fraudulently trying to enter the country on false statements/documents. When you enter on a H1, you mention to the immigration officer where you work. or they write the employer name on their notation. This is a very serious situation. This is how i look at it. As correctly mentioned if you had worked for the previous employer A even for one day after entering thecountry the first time you would be okay.
All i can suggest is that the best option is to be proactive rather than wait for a RFE. set up a consultation with your own attorney (a private one) not the one free from the company, and discuss this issue. Lot of lawyers will do a couple of session consultation and then you will know as to what to do.

I am sorry to mention the hard facts but after 9/11 and after 1996 immigration law the immigration officials have lost a lot of discretionary powers.(where they will look the other way). Any unlawful entry is looked at seriously. They are in this business all the time, and its taking a chance by saying that the officer will not notice it. They know the laws in and out. and that is why they are looking at every discrepancy.

This is how I read the facts. This is my opinion. sorry to spoil your weekend but its better to attack the problem right now than wait for a NOID.
 
tuxedo said:
was very happy when i saw tammy2's reply about 245i. just doubled checked the PD date with my brother and unfortunately it is not april 2001 but it is September 2001.
I heard from some body that USCIS only consideres the status from the last entry in to the US.Is this true.

Also Does USCIS checkes Previous I-94 records(485 stage).

Is this a solvable problem if we go to any competent attorney because this was a mistake.

Please gurus guide us.

Appreciate your help.
Click to expand...

Did he apply any Labor (even if he HAS NOT USED) before April 2001?
 
no

Tammy2,
No he didnt apply any labor before september 2001.
We are going to discuss this with an immigration attorney next week.
Mean while i have discussed with my companys immigration law firm(huge and reputed).and what she says is USCIS concerns status from the last entry in to the USA and thats why they ask our last entry details in 485 form.
If this is true he is fine.
Dont know how far this is true.
Can any body clarify this info and also any idea's how to handle if we receive an RFE so that i can discuss all the options with the immigration attorney.
Thanks in advance.
 
My view

Guys,
In my view (which i confirmed with the lawyers in my case), holding multiple H1's is always valid but you should work with only one employer at any point in time. Once you enter the country, for moving from company 'A'
(through which you entered the country) to company 'B' whose H1b petition you already have is always allowed within 60days of entry(portability). The status is valid as long as you are in payroll of company 'B' and you gave your
company 'B' related H1 data in I-9 form.
You need to get the stamping only if you go out of the country and your
visa(visa stamp on the passport is expired..its irrelevant whether its company A or company B...etc...).
I have consulted attorneys on this as mine is pretty similar case.
Please let me know whether anybody consulted an attorney and has different view.
Thanks,
Srini
 
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