Urgent question regarding H1 transfer - help!!

[floyd777]

I am currently working on an H1 visa that is due to expire on 07/03/2006. This is my fifth year of application.

I last left the country in January 2004 and went to India and came back in February 2004.
At that time I was working on the visa of my previous company called XYZ. That visa was valid till 03/31/2005.

At the port of entry, the officer gave me a white I-94 card which has the date of my stay till 03/31/2005 as per my H1 visa stamp for XYZ.

After a couple of weeks, I moved to ABC by transferring my H1 visa. My H1 transfer approval came with a new I-94 as part of the H1 approval notice and that is valid till 07/03/2006. The H1 was file on October 7th 2003 and it was approved on December 4th 2003 but I did not join the company ABC till one week after coming back to the US.

Recently in preparation to filing an H1 transfer to company DEF, the HR department of the company that I am planning to move to mentioned that since the last action of USCIS was the issuance of the white I-94 card, technically my status expired on 03/31/2005. I told them that the new I-94 that comes with the H1 transfer or extension is the most current one and not the one that was issued by the officer at the port of entry. I never went outside the USA since my last trip.

I checked on various websites and it seems that this should not be a problem since my current I-94 (although not issued by a POE officer but was part of the H1 transfer approval) is the one that I’ve to use. I’m just supposed to cut that I-94 part and staple it into my passport along with the white I-94 card.

I did see that people file a I-539 form for requesting an extension of stay but those are only required for people on other visas like F1, H4 etc. The H1 notice should serve to prove that I am legal and in status.

The HR department says that the last action of the POE officer only counts and even if we file for a new H1, there might be an RFE to explain this situation. I’ve been in exactly the same situation before and had no problems stamping my visa a few years back.

What should I do? Please help me. I already talked to a lawyer and the lawyer said that I do not have to worry since I have a I-94 card with the approval notice that is valid till July 3rd 2006 but my HR folks and the lawyers for the new company are not ready to listen. I've already resigned from my current job and will be leaving officially at the end of this month. I've only few days to handle this and file a new H1 petition through the new company.

Please help!!!!!!!!!!

 

[MarilynneBryan]

Well, at the expense of sounding rude, it sounds like your HR department does not know what they are referring to. The previous I-94 card that you got at the consulate office was your I-94 number until you received the newest approval notice (I-797). That newer I-797, which also contained the I-94 card portion on the lower part of the original I-797 notice (the bottom portion separated by the dotted line), is your current I-94 number, and this is THE LAST ACTION BY CIS, which determines not only your status, but also your expiration date, which overrides any previous I-94 cards or I-94 numbers you have received.

THE NEWEST I-94 CARD OR NUMBER YOU HAVE RECEIVED IS YOUR CURRENT I-94, and should be referenced for your approval expiration date.

It sounds like you may need someone else to file your H-1 petition change for you, just to be safe. I am an H-1B visa expert, and would be glad to help you. Please contact me at Immigration_now@hotmail.com or phone me at 918-724-9252 if you would like me to file your petition for you.

Also, you were correct, you would not file the I-539 as an extension form for your H-1B, that would be used if you had a spouse and/or children who are on the H-4 status as your dependents. To file an H-1 extension, you would use the I-129 forms, but that is not all there is to it, there are supplemental forms to be filed along with it, and a Labor Condition Application to be filed with the Department of Labor.

Please contact me if I can help you.

Thank You,
Marilynne Bryan

 

[floyd777]

Thank you Marilyn,

But here is the problem. I did not put this very clearly in my post as I was myself not sure as to what was happening. My own H1 for company ABC was approved on December 4th 2003 and when I left and came back into the country , entering on the 9th of February I was still working for company XYZ. I had not joined ABC even thought their H1 transfer was approved and I was on the pay roll of XYZ on whose visa I was travelling. I mentioned to the POE officer that I may join the new company but that I have not joined yet but he did not ask me for any papers for the new company and stamped my I-94 as the date of company XYZ visa.

Thus the last action of USCIS was when I got the I-94 card at the POE. I joined the new company ABC only AFTER 10 days of coming back to the US.
This is the complication in my case. Can you give me any advice?

I had consultations with many top lawyers and they all said that although there is a bit of a problem it is not going to be a great issue as I have a valid I-94. I may have to go for I-94 correction if there are further problems.

Thanks.