sammyiee

13 minutes ago, Chancy said:

 

This would have been a great update, except that USCIS does not approve visa applications of any kind.  Visa applications are only approved by Department of State consulates outside the US.  Maybe you mean USCIS approved your I-539 Change of Status to B2 or H1B.

 

Yes, you know what I mean! Sorry for my lack of knowledge for using the right terminology. 

An update on this case!!

This was one of the hardest decisions I had to make last year. So many of the people here and on the internet told me to "get on a plane", "go back home", etc, etc, and that I would eventually be deported bla bla bla..while I really understand where that is coming from, and its NOT advisable to stay once your visa has expired unless you've taken any other legal actions, I will say this, TAKE EVERYTHING ON THE INTERNET WITH A GRAIN OF SALT...sometimes, things work out and my case is a solid proof that every case is unique and what may work for me may not work for everyone, or what didn't work out for people may work for you. So you know what's good for you.

I learned it the hard way!! I thought I was doing the wrong thing here, by filing a tourist visa that was believed to take forever to get approved, there were so many people warning me that I'll be stuck forever and eventually get deported but here's what happened from the last time I was here.

Despite everyone saying its not the right choice, I still filed for a tourist visa, buying more time to stay here while my employers were busy sorting the visa situation out. 

It was really essential for me to physically be in the States as I had to be on calls, respond promptly to emails, be on top of the communication with my employers. I couldn't have done the prompt communication if I were back home.

My employers hired immigration lawyers and trust me the only person you'll need to ever listen to are the immigration lawyers! They know what's best, I wouldn't rely so much on the internet for any expert insight. I explained to them what's going on with my visa situation and they let me know the possible scenarios which wasn't all negative, there was hope things still would work out.

It took them approx. 2 months to file for the H-1B under premium processing, they were super slow in filing but we got the decision early on, and as expected USCIS, asked for extra evidence (RFE). RFE isn't the end of the H-1B process, its just USCIS asking for extra information. 

Now while this is happening my tourist visa application was still pending, so this needed to be approved for my H-1B to process. Finally, towards the end of November,  USCIS approved my tourist visa application!!! This was very surprising as I almost thought it would never get approved and my employers would decide to move on..but it worked y'all....and this removed one hurdle out of the way.

So with that out of the way, the lawyers filed for the RFE towards the end of December, and everyone was super nervous what the outcome would be...but the lawyers were positive for a favorable outcome. So this long weary legal process ended on a high note when USCIS approved my H-1B application on December 30th!! 

Final message to everyone here is don't take a no for an answer, because things work out sometimes despite what the critics say and my situation is one concrete example. Every situation is unique like I said earlier so don't let someone's "expertise" hold you down. Take legal steps, and if you are very confused, along the process, get in touch with an expert, and just listen to them, don't overwhelm yourselves with information out there. There are a lot of people to say "NO this won't happen", and only a few to say "there's a slight chance", so pick your poison!! Thanks for coming to my TED Talk!!

2 minutes ago, Ontarkie said:

~~Duplicate thread has been removed. This will be your last warning. DO NOT start another thread on this topic.~~

Sorry that was an accident

Just now, JeanneAdil said:

you 60 day grace period ends tomorrow

u should leave today so u don't take any chances of an overstay by even a day (flight delays can cause this)

 

and u need to have followed the rules and guidelines for this current visa to get the new H-1b approved 

u have no extension to stay currently in the US

 

good luck

get on a plane

Yes but I have a filed I-539, so my main concern is that right now.

So I know I have posted thousand things here.... but here is the new situation... I know I am being super indecisive....but my employers called me today and said they are ready to file my H-1b today!! As i mentioned, I have already submitted I-539 which puts me in this tricky spot. I was wondering if I am able to still withdraw, go back home by tomorrow and focus on H-1b.

49 minutes ago, nastra30 said:

Hmm, alright, so based on my Google searches there seem to be mentions that you'll have authorized stay. But I couldn’t really find a USCIS Policy that is explicit about it (including the one you shared above). Nonetheless, you already acknowledged it's risky business. Keep us informed how your case turns out in the future; we'll use your situation as a test case 😀.

😫

24 minutes ago, Crazy Cat said:

There is a glaring oxymoron in that statement. 

Yes I guess. At this point, I don't know whom to trust anymore, the lawyers or the internet.

4 minutes ago, nastra30 said:

https://www.uscis.gov/news/alerts/applicants-for-change-of-status-to-f-1-student-no-longer-need-to-submit-subsequent-applications-to

Found the policy.

BUT BUT (A BIG BUT) - It only applies when you are applying for COS to that of only F-1 non-immigrant status.

So unfortunetly for op, you can't bridge the gap with B-2 application. I think you are out of luck.

This is only specific to F1 students, here, this is a bit more general : https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf

6 minutes ago, Timona said:

 

Exactly. I even don't know what the argument here is.

 

If filling EOS & COS right when your other non-immigrant visa expires or right before it expires confers any benefit, everyone on B-2 would be doing it. I mean, if by 6 months I don't wanna leave, I'll just file, chill and cite COVID policy.

 

During COVID, as someone has mentioned, USCIS amended their policy to give "authorized stay upon submission." We do have to agree that this was done to accommodate sluggish COVID times. Common sense should tell us that this is long gone and we cannot keep on milking it. 

 

Now, EOS or COS is fine. However, it should be done early so that you get a decision within your current authorized stay.

No you wouldn't need a decision made to continue staying. And everyone wouldn't be doing it because its risky. I don't think this is a Covid related adjustment, during Covid, the argument would have been more valid with the closures and everything but now USCIS is able to question as to why I decided to change my status so yes as I said, a lot of risk involved. I am stressed already but I felt this was the only choice considering my situation. Not the best decision I know but I had to do what I had to do.

19 minutes ago, Crazy Cat said:

That isn't how I read it. I read it as subject to removal.  Good luck. 

I spoke with the lawyers on this, I would not have a "lawful status" but I will have an "authorized stay" and there's a difference between these two. Nevertheless, it comes with risks.

1 hour ago, Crazy Cat said:

Chapter 3 - Unlawful Immigration Status at Time of Filing (INA 245(c)(2

8 hours ago, Mike E said:

https://www.uscis.gov/sites/default/files/document/guides/C1en.pdf
 

“Employment-Based Categories: If you are in one of the following employment-related categories, your employer should file a Form I-129, Petition for Nonimmigrant Worker, before the date your Form I-94 expires:“

 

“What if I file for an extension of stay on time but USCIS doesn’t make a decision before my I–94 expires?
Your lawful nonimmigrant status ends, and you are out of status, when your Form I-94 expires, even if you have timely applied
to extend your nonimmigrant status. Generally, as a matter of discretion, USCIS will defer any removal proceedings until after
the petition is adjudicated and USCIS decides your request for extension of nonimmigrant status. Nevertheless, DHS may bring a removal proceeding against you, even if you have an application for extension of status pending.
Even though you are not actually in a lawful nonimmigrant
status, you do not accrue “unlawful presence” for purposes of inadmissibility under section 212(a)(9)(B) of the Immigration and Nationality Act, while your extension of status application is pending if it was filed prior to the expiration of your Form I-94.”

 

Its the most bizarre and useless form USCIS has.  

)) | USCIS

E. Effect of Pending Application or Petition

A pending application to extend or change status (Form I-129 or Form I-539), a pending adjustment application, or a pending petition does not confer lawful immigration status on an applicant. In addition, a pending application or petition does not automatically afford protection against removal if the noncitizen’s status expires after submission of the application. The noncitizen may have no actual lawful status in the United States and may be subject to removal proceedings unless and until the extension of stay (EOS) application, change of status (COS) application, adjustment application, or petition is approved. 

I wouldn't be under any status but I am allowed to stay unlike with grace period ending, I'd have to leave immediately.

9 hours ago, Bajinga said:

I think the best course for OP would be to leave soon before the decision is made on the I-539. that avoids accruing any unlawful presence and consular processing can be done for a potential H1b application in the future. COS in this case does not seem like a good choice.

Yes, I plan on leaving and coming back with H-1b. I know its not going to be as simple but this seems like a possibility.

9 hours ago, arken said:

The B2 cos receipt notice does give you an authorized stay while it is being processed. It does not give you any status though unless it's approved. However it is taking more than a year to process it and the maximum it will allow you to stay is 6 months. You have to leave the US regardless within 6 months while it's pending. If you stay beyond 6 months and you get the approval for 6 months, any stays beyond 6 months will be considered overstay. If your B2 is denied and you are still in the US, the entire stay from Sep 11 will be considered overstay.
 

 If your employer files for H1B transfer while B2 cos is pending, your B2 has to be approved first before your h1b can be approved because you won't have any status to change it back to H1b when it's filed. You can't work for your new employer when H1B transfer is filed unlike usual H1B transfer where one can start work while it is processed. You don't have a valid status for H1B transfer while b2 is pending so you cannot work.

 

 

I am aware, in this case, I plan to go back and withdraw my B2 application and come back with H-1b.

1 minute ago, Bajinga said:

if you applied online, the receipt might already be under the documents tab so check their first. for I-539 that should be the final step, unless they send a RFE.  what status are you changing to?

Oh okay, then I have it. Does it extend my legal stay automatically then? Do you know? From H-1b to B-2, I was on a grace period which is ending Saturday.

Okay so I bit the bullet and sent my I-539 CoS application today as I didn't feel going back was a reliant option. I took some insights from the lawyer and I am aware the risks attached from this step but I am letting it be as I wanted some mental space to think things through. One question though, does anyone know if submitting the petition online is the final step on the process? Does it automatically extend my time to remain in the US or do you receive some sort of a formal notice?

6 minutes ago, arken said:

Not exactly sure on H1b, it shows around 3 months for student visas. I'd still expect at least 2 months. Interview waiver is a possibility which will reduce the overall time for sure.
 

 

What do you mean you don't have an expiry date on i94. Unlike the student status, any h1b should have the expiry date on i94 whether it's through CBP or through Uscis within the US. What's there on your i94 exactly?--- It says D/S, on my previous H-1b the expiry date was for the year 2024.

 

 

You could technically apply online for COS to B2 that will allow you to stay in the US while it's processed. With up to 1 year or more of processing time for B2, it will very likely be denied at that time. You new H1b cannot be approved until B2 is approved. So you will likely accrue months of unlawful presence through that way. -- I wouldn't have an "Unlawful status", i would just not have a status. Yes, this involves risk I understand.

At this hour, leaving the US asap is the only choice. How long it takes for visa interview or how long it takes for your employer to file lca then h1b are secondary things atm.-- I am only worried if I leave the US now, and the H-1b doesn't get approved, I have to think from that perspective as well.

 

6 minutes ago, Timona said:

 

You have to leave. So, if you can't get out to Kathmandu before the 10th, get the next available flight out to a suitable destination Mexico, Canada, India etc. Just make sure you're out before things come back to bite. 

I think as long as I get out of the US by 10th, I should be fine, doesn't matter when I reach.

On 9/7/2022 at 10:47 AM, arken said:

You want the complication or direct denial with no chance of change of status or transfer after being out of status.

Two choices but only 1 smart path.

 

1. Leave the US before Saturday. You wouldn't be out of status. Your employer will file for H1B and you will appear for the visa interview. The complication of visa stamping is natural.

 

2. Stay in the US beyond Saturday and then go out of status. Any H1b extensions or transfer or change of status will ultimately be denied. You then have to leave US regardless after accumulating bunch of overstays. This may prevent any non immigrant visas down the road.

Do you know what the wait times for H-1b visa interview is in Nepal since you're from Nepal? Also, I think I qualify for a visa interview waiver, I am wondering if that would make things any easier.

4 minutes ago, STO Overland said:

You may want to discuss with your prospective employer about that submission. A quick google of "H1B grace period" pulled up this interesting site

 

Notes:

Grace period is 60 days or expiration of your I-94, whichever is shorter. I assume your I-94 validity date is enforce beyond September 10th otherwise you would be out of status already.

Grace period is not automatically granted but at DHS/USCIS discretion. 

 

If your employer has not yet submitted the transfer application and received the receipt notice by day 60, you need to leave the US. If your employer files on day 61 or later, you need to be out of the country.

I don't have an expiry date on my I-94 so technically, I have 60 days as my grace period for legal status.

4 minutes ago, STO Overland said:

 

Some quotes from

 

Quote

What if I exceed 60 days grace period with H1B Transfer ?

Well, technically you are considered to be in valid status until you hit the 60 days grace period mark or expiration of I-94. Once you go past 60 days, your status is no longer valid and you are considered as ‘Out of Status’.

Let’s say you apply for H1B transfer and get the USCIS receipt on day 60, you can still start to work from day 60 and it will be fine, but if you do not have the receipt on 60th day, you are entering a tricky zone and you should talk to your attorney and decide. Ideally, the safest thing to do is leave and re-enter US. It is always recommended to go for premium processing, if available, in situations like these.

 

When Can I Start working during Grace Period with H1B Transfer ?

You can start working for the New Employer, as soon as you have received the USCIS Receipt Number. E.g. If you lose your job and you filed for H1B transfer with new employer and got receipt after 20 days during the grace period, you can start working right away after you have receipt number from USCIS. You do not have to wait for completion of 60 days grace period.

 

Not sure which country you are from but maybe worth a trip to Mexico for a couple of weeks. If your employer is nervous about you not being around, it is better than causing you subsequent immigration issues by being around beyond day 60.

 

Good luck. I wish you well

If I plan to leave, I'll have to go through the consular process, and that can be a tricky situation. I am from Nepal so I am not sure what the waiting time is for getting an interview there. Some lawyers suggested me to apply for a bridge visa or apply for the change of status but it involves risk.

Thank you for looking into this and adding insights! Really appreciate it!!

4 minutes ago, Timona said:

 

Not a good plan to leave last minute. We have stories here of people who did that, only to regret later eg natural disaster, cancelation, sickness etc. USCIS and US immigration won't care that a hurricane happened. They'll point that you had enough time.

 

As @arken said.

 

Had to edit as I didn't remember we're already in September 🤦🏽‍♂️

Yeah I know, its so last minute as I was still waiting for my employer to file the petition on time and I was contemplating my choices and I am literally a day away from my stay expiring. I am so stressed I cant even begin to tell

3 minutes ago, arken said:

 

Simple counting. Just count 60 days after July 12. That'll be Sep 10. Any day you spend in the US beyond Sep 10 will be considered overstay.

Thanks so...if I plan to leave the US on Sep 10, would that still be okay?

2 minutes ago, CMJuilland said:

What visa have you been on? From what I have read, most non-immigrant work visas have a grace period of 60 consecutive days after they run out (see H1B, for example: https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations). Careful, USCIS generally doesn’t calculate in full months, but in days. Ergo, 60 or 90 days are not two or three months respectively. 

 

 

H-1b..I am just confused about how the 60 days are counted from there

Hi, so my last day of employment was July 12th, so technically isn't my grace period supposed to be until Sep. 12th? I am just confused about how grace period is calculated. 

29 minutes ago, sammyiee said:

 

Yes, but I am just trying to see if there are any other alternatives at all since they are in the process of filing. My employers are pretty oblivious to the H-1B process and just telling them that I'll be out of the country might make them feel insecure and more confused so a part of me is scared as well, if I have to leave the country there are a lot of uncertainties that would come from it.