I-94 getting expired; File H1 NOW?

[therisingsun 0]

Greetings:

I filed my I-140 back in Feb-2014, but apparently there is no status update on my case. I just updated my case to premium processing, so expecting an update soon.

My I-94 (Issued at the airport) and H1-B visa stamp on passport expires Aug-14 but my visa expires in Dec-14. I am planning to wait for few more days to get I-140 result before I file for H1-B extension. My wife's visa stamp also expires same time as mine. How big is the risk here?

I really appreciate all your inputs. Thanks a LOT in advance!

[canadian_wife 1,791]

Question: Why does the visa stamp have a different date on it than the H1B visa?

Question: Why are you asking for an extension?

good luck

[therisingsun 0]

My first employer had wrong end date on my H1B renewal. I changed my employer and they corrected the issue while transferring the H1, but meanwhile I went to India and had my H1-B already stamped on my passport with old (Wrong) Date.

I am asking for extension because my 2nd H1-B visa passport stamp is expiring on Aug-14. I wanted to make sure I am in status while my I-140 is under progress.

Thanks.

[Mollie09 1,543]

You should ask your employer's lawyer this question, as it is case-specific.

If you were admitted under an old petition while you were already working for the new employer, you could potentially be in trouble. You are supposed to present the new petition at POE and the date on your entry stamp would reflect that.

If I misunderstood and the transfer was completed after you were admitted, your old I-94 no longer counts and you have a period of authorized stay until the expiration of the new petition.

Which one was it?

[therisingsun 0]

Actually it was the first case. I did not present my new I797 upon arrival at the airport. I went to the CBP office at the airport and they corrected my I-94 to show new expiry date. (I had to wait for 10 hours though), now my I-94 is valid till Dec-03.

Question still remains for my wife. Her I-94 still expires on Aug-14, and I am not sure how to resolve it.

Thanks,

[jan22 2,898]

The controlling date is your I-94, regardless of the date on the visa. The date on the visa is merely the last date that you can apply to enter the US using that visa. The I-94 represents the decision of the immigration officer at the port of entry that you can be admitted and how long you can stay. If you have a valid petition that goes past the date on the I-94, I would file for an extension ASAP (for you and your spouse) and not wait to hear about the I-140. You don't want to risk falling out of status for even a day.

[therisingsun 0]

@jan22

Thank you for recommendation. I will get the extension process started ASAP. My I-94 got corrected and now expiration date shows Dec-03, but my wife still says Aug-14. Even if I file for H4 extension right now, she won't get decision back before her I-94 expires. Is that going to be an issue? Does she have to go out of country?

Thanks,

[Mollie09 1,543]

Actually it was the first case. I did not present my new I797 upon arrival at the airport. I went to the CBP office at the airport and they corrected my I-94 to show new expiry date. (I had to wait for 10 hours though), now my I-94 is valid till Dec-03.

Question still remains for my wife. Her I-94 still expires on Aug-14, and I am not sure how to resolve it.

Thanks,

You applied for an H1B transfer without an H4?

[therisingsun 0]

You applied for an H1B transfer without an H4?

That's right.

[Mollie09 1,543]

That's right.

I would file for her H4 extension ASAP. While she has a petition pending she's in a period of authorized stay. Otherwise your new petition date has nothing to do with her and her I-94 is correct and cannot be amended by an underlying petition. When it expires, if there are no petitions pending, she will be in a period of unauthorized stay which could jeopardize your I-140 and subsequent I-485.