Received expired I94 from USCIS

[vinu02 0]

I completed 6th year of H1b visa along with my wife who is on H4 on October 1st. My lawyer applied for H1b visa to recapture unused time till March 20, 2016. We received RFE on March 19th and we got approval on June 20th with i94 H4 and H1 with validity from October 2015 to March 2016. My lawyer applied for H1b visa again for June 2016 to 2019. But we recieved RFE again stating we overstayed from March 20, 2016 till the time they received application in July 2016.

Now the lawyer say she cannot file H4 visa for my wife and she needs to leave country and get the stamping done when I get approval. My i140 is already approved.

What are my option ?

[Boiler 43,419]

What status did you move to after March 20th?

[vinu02 0]

Since my application was pending, my lawyer said to wait for USCIS to make decision since I140 was approved. Since didnt suggest anything. I got USCIS decision on June 20th.

[Boiler 43,419]

Your Employers lawyer?

None of this makes much sense, so you remained in the US on vacation after March?

You have to be in status to change status.

[vinu02 0]

She is not employer lawyer but she filled my H1 visa twice.

I had asked her to change status but she said she cannot do anything till we receive approval or denial. We got the approval in June.

Now that its already past, what should do ? My application is pending with RFE. I read that I can stay with expired visa as long as case is pending and if I move out of USA then the application is considered abandon.

Your Employers lawyer?

None of this makes much sense, so you remained in the US on vacation after March?

You have to be in status to change status.

[newacct 688]

You can only file for extension of status when you are in status. You only expected your EOS application to be for until March. So if you wanted to extend it beyond then, you should have filed for another EOS by March. Staying here and waiting for your first EOS to be decided was a bad idea because, regardless of whether it was approved or denied, you become unlawfully present the moment after the decision because, you know that even if it was approved it would only be until March. Furthermore, you have likely triggered INA 222(g) which means your visa is void and you can only apply for US visas in your country of nationality for the rest of your life.

Your second EOS application doesn't protect you against unlawful presence because it was not timely filed (it was filed when you were out of status).

If you are eligible to file I-485 now, you (and your wife) could consider doing that and stay in the US, because you are in an employment-based category and you have bee out of status for less than 180 days. But you wouldn't be able to work until you get an EAD.

[vinu02 0]

My I140 is approved but priority date is July 2015 for India. I cannot apply change of status I485 till priority date becomes current. I was told I can work upto 240 days even if my visa expires. I read there is H-1b exemption as long application is pending. I filed the application before expiry in August 2015 but I got approval in June 2016

What is 240 days rule for H-1b ? Do you still think i could have triggered 222g ?

https://www.temple.edu/isss/immigration/overstay.html

Blanket extraordinary circumstances exemptions

Department of State regulations and guidance provide several important "blanket" exceptions to the place-of-visa-application restriction. If an alien subject to I.N.A. § 222(g) falls under one of the following categories, he or she is not required to return to his or her country of nationality to apply for a visa (although individual categories may restrict application to another single country if so noted):

1. Alien physicians serving in underserved areas in the United States under I.N.A. § 214(l), and who filed a timely application for a waiver of the J-1 two-year home country physical presence requirement and/or an H-1B petition, may claim the exception. This provision applies to individuals whose period of stay expired while applications that had been filed before the authorized period of stay expired--and that were subsequently approved--were pending. [22 C.F.R. § 41.101©(1)]
2. Individuals who are a resident of a country other than the country of citizenship can also apply for visas in their country of residence. [22 C.F.R. § 41.101©(3)]
3. Nationals and residents of a country in which there is no United States consulate must apply for a visa at the consulate designated by the Department of State to accept such applications for individuals from that country. [22 C.F.R. § 41.101©(4)]
4. Dual nationals must apply in their country of residence. [22 C.F.R. § 41.101©(5)]
5. H-1B applicants denied change of status because the H-1B cap was reached, provided they did not work without authorization either before the application was filed or while it was pending, may claim the exception. [Cable 99 State 105097, June 7, 1999]

You can only file for extension of status when you are in status. You only expected your EOS application to be for until March. So if you wanted to extend it beyond then, you should have filed for another EOS by March. Staying here and waiting for your first EOS to be decided was a bad idea because, regardless of whether it was approved or denied, you become unlawfully present the moment after the decision because, you know that even if it was approved it would only be until March. Furthermore, you have likely triggered INA 222(g) which means your visa is void and you can only apply for US visas in your country of nationality for the rest of your life.

Your second EOS application doesn't protect you against unlawful presence because it was not timely filed (it was filed when you were out of status).

If you are eligible to file I-485 now, you (and your wife) could consider doing that and stay in the US, because you are in an employment-based category and you have bee out of status for less than 180 days. But you wouldn't be able to work until you get an EAD.

[Boiler 43,419]

Visa is not the issue, your status is, your I 94.

Sounds like you have been working without authorisation as well.

H1b = sponsored by an Employer, so completely lost as to where there Lawyer is.

[vinu02 0]

Now the question is what could have been and what should I do ? I was told we have to wait till USCIS make decision on previous application before new filing can be done and so we waited.

[newacct 688]

I think you were told wrong.

[vinu02 0]

Got approval.