Wrong I-94 Date At CBP Which Has Now Expired

[skpanda]

Guys Posting here since this has most visibility. Will move it to appropriate topic soon.

H4 Extension was approved in Dec 2015 with I94 expiration date of DEC 2018.
My wife has a Visa Stamp on passport till FEB 2018.
We went out of the country in AUG 2017 and when we came back the Admit stamp on passport and I94 was given as FEB 2018. (We did not realize this until now June 2018).

The problem is 'last I94' rule applies and the I94 date from Aug 2017 is the legal date by which my wife has to stay. So in official terms, she has overstayed her visa (even though she has a H4 I797 valid till Dec 2018).

Has anybody faced this issue? If yes, how did you handle.

Anybody has inputs as to how to go about it?

Note: We just had a new born baby so we not be able to travel outside US and come back in near term.

[Prabhas]

Guys Posting here since this has most visibility. Will move it to appropriate topic soon.

H4 Extension was approved in Dec 2015 with I94 expiration date of DEC 2018.
My wife has a Visa Stamp on passport till FEB 2018.
We went out of the country in AUG 2017 and when we came back the Admit stamp on passport and I94 was given as FEB 2018. (We did not realize this until now June 2018).

The problem is 'last I94' rule applies and the I94 date from Aug 2017 is the legal date by which my wife has to stay. So in official terms, she has overstayed her visa (even though she has a H4 I797 valid till Dec 2018).

Has anybody faced this issue? If yes, how did you handle.

Anybody has inputs as to how to go about it?

Note: We just had a new born baby so we not be able to travel outside US and come back in near term.


SK, sorry to see that you are in bit of a soup.. but congratulations on the new born! Not sure where you are located but any near by airport with CBP centers will be able to make that correction if you show them the approved I797 with its validity. Boston Logan airport is generally liberal with these type of typos but the bigger question will they allow such correction after this long... did you check with your lawyer?

[tenyearsgone]

Guys Posting here since this has most visibility. Will move it to appropriate topic soon.

H4 Extension was approved in Dec 2015 with I94 expiration date of DEC 2018.
My wife has a Visa Stamp on passport till FEB 2018.
We went out of the country in AUG 2017 and when we came back the Admit stamp on passport and I94 was given as FEB 2018. (We did not realize this until now June 2018).

The problem is 'last I94' rule applies and the I94 date from Aug 2017 is the legal date by which my wife has to stay. So in official terms, she has overstayed her visa (even though she has a H4 I797 valid till Dec 2018).

Has anybody faced this issue? If yes, how did you handle.

Anybody has inputs as to how to go about it?

Note: We just had a new born baby so we not be able to travel outside US and come back in near term.

SK .. congrats on the newborn!

My understanding is that CBP will only issue a I-94 to the date of visa expiry or I797's I-94 expiry.. whichever comes first. If the I797 was issued after entry into the country, then the attached I-94 is valid till the recipient travels out of the country. In this case, since the I-797 was issued before your last entry, the attached I-94 is not valid. Unless a visa was issued based on the new I797, CBP will stick to expiry date of the visa.

Worst case, I would suggest to travel out of the country as soon as feasible (before 180 days of I-94 expiry) and try to get a new stamping. That way you won't fall foul of re-entry rules atleast. In addition, since it's less than a year since visa expired, she may be eligible for dropbox processing. Prep as much as possible by getting the baby's passport asap and go from there.

Apologies.. I know this sounds like bad news. Hopefully, your attorney and USICS prove me wrong.

Note: I am not an attorney and this is only an opinion.. not legal advice. Please consult an attorney as the situation warrants it.

[Jagan01]

Guys Posting here since this has most visibility. Will move it to appropriate topic soon.

H4 Extension was approved in Dec 2015 with I94 expiration date of DEC 2018.
My wife has a Visa Stamp on passport till FEB 2018.
We went out of the country in AUG 2017 and when we came back the Admit stamp on passport and I94 was given as FEB 2018. (We did not realize this until now June 2018).

The problem is 'last I94' rule applies and the I94 date from Aug 2017 is the legal date by which my wife has to stay. So in official terms, she has overstayed her visa (even though she has a H4 I797 valid till Dec 2018).

Has anybody faced this issue? If yes, how did you handle.

Anybody has inputs as to how to go about it?

Note: We just had a new born baby so we not be able to travel outside US and come back in near term.

SK,

What is the reason that the stamp on I94 was only until FEB 2018 ?

I have seen this happen in two scenarios:
1. Sometimes the passport expiry is before the visa expiry. Check the passport expiry date and see if that is FEB 2018.
2. The agent just stamped the wrong date in spite of both visa and passport being valid until DEC 2018.

For #2, the solution is straight forward and you just need to go to CBP office and explain them the situation and they will correct it for you.

For #1, I am not sure about the procedure, but the same procedure as for #2 might work.

I see that you mentioned that I94 also has the expiry date of FEB 2018. I am assuming you checked this on the online I94 tracking system. I have recently seen cases where the stamp is just incorrect due to negligence of the stamping agent but the I94 date in the I94 tracking system is correct.

And yes, Congratulations for the new born !!

[4WatItsWorth]

SK,

What is the reason that the stamp on I94 was only until FEB 2018 ?

I have seen this happen in two scenarios:
1. Sometimes the passport expiry is before the visa expiry. Check the passport expiry date and see if that is FEB 2018.
2. The agent just stamped the wrong date in spite of both visa and passport being valid until DEC 2018.

For #2, the solution is straight forward and you just need to go to CBP office and explain them the situation and they will correct it for you.

For #1, I am not sure about the procedure, but the same procedure as for #2 might work.

I see that you mentioned that I94 also has the expiry date of FEB 2018. I am assuming you checked this on the online I94 tracking system. I have recently seen cases where the stamp is just incorrect due to negligence of the stamping agent but the I94 date in the I94 tracking system is correct.

And yes, Congratulations for the new born !!Having gone through #1, CBP does not consider this is a mistake and will not issue a new I-94. Once you get a new (or renewed) passport, there are two ways to get a new I-94-

1. Go out of country. Return using the I-797 approval notice and new passport. You should get a new I-94 based on the validity of the approval notice.
2. If you cannot go out of country, go through the H1 (or H4) extension of stay process and get new approval notice and I-94, as procedures allow.

The fact that OP’s spouse has overstayed their visa, the approval in #2 above may not come with a new I-94. Sorry. But congratulations to OP on the new baby.

It is not a legal advice.

[skpanda]

SK, sorry to see that you are in bit of a soup.. but congratulations on the new born! Not sure where you are located but any near by airport with CBP centers will be able to make that correction if you show them the approved I797 with its validity. Boston Logan airport is generally liberal with these type of typos but the bigger question will they allow such correction after this long... did you check with your lawyer?


Thanks for the wishes!
1. Initiated an email with local CBP. Lets see how it goes.
2. Checking with company Lawyer.

Will update in either case what happens!

Regards, skpanda

[skpanda]

SK .. congrats on the newborn!

My understanding is that CBP will only issue a I-94 to the date of visa expiry or I797's I-94 expiry.. whichever comes first. If the I797 was issued after entry into the country, then the attached I-94 is valid till the recipient travels out of the country. In this case, since the I-797 was issued before your last entry, the attached I-94 is not valid. Unless a visa was issued based on the new I797, CBP will stick to expiry date of the visa.

Worst case, I would suggest to travel out of the country as soon as feasible (before 180 days of I-94 expiry) and try to get a new stamping. That way you won't fall foul of re-entry rules atleast. In addition, since it's less than a year since visa expired, she may be eligible for dropbox processing. Prep as much as possible by getting the baby's passport asap and go from there.

Apologies.. I know this sounds like bad news. Hopefully, your attorney and USICS prove me wrong.

Note: I am not an attorney and this is only an opinion.. not legal advice. Please consult an attorney as the situation warrants it.

Thanks for the wishes!
CBP has stamped I94 dates based on I797 which is later in my case most recently. As a backup I am working on getting paper work for the baby. Initiated conversation with local CBP. Checking with my company Lawyer as well.

[skpanda]

SK,

What is the reason that the stamp on I94 was only until FEB 2018 ?

I have seen this happen in two scenarios:
1. Sometimes the passport expiry is before the visa expiry. Check the passport expiry date and see if that is FEB 2018.
2. The agent just stamped the wrong date in spite of both visa and passport being valid until DEC 2018.

For #2, the solution is straight forward and you just need to go to CBP office and explain them the situation and they will correct it for you.

For #1, I am not sure about the procedure, but the same procedure as for #2 might work.

I see that you mentioned that I94 also has the expiry date of FEB 2018. I am assuming you checked this on the online I94 tracking system. I have recently seen cases where the stamp is just incorrect due to negligence of the stamping agent but the I94 date in the I94 tracking system is correct.

And yes, Congratulations for the new born !!

Thanks for the wishes!
Our case is not #1 or 2.

In our case Visa Stamp expired in Feb 2018 but latest I797 expires in Dec 2018. At port of entry I think officer may not have noticed the I797 date and gave us the Visa stamp Expiration Date. Unfortunately we did not do the due diligence since we travel out of the country quite often. my bad!

Checking with CBP and also Lawyer. Will post the outcome!

[delguy]

Similar issue happened with me but I noticed it as soon as I was out of immigration area at JFK. I always check the I-94 date online asap. Next morning I rushed to EWR airport which is near to me and they fixed it on the spot. Take a copy of your passport page where entry stamp is and also copies of I-797s to nearest CBP office and give it a try. At the worst they will refuse to fix it but it is worth trying. This is usually considered a mistake of CBP officer.

[Spectator]

Thanks for the wishes!
Our case is not #1 or 2.

In our case Visa Stamp expired in Feb 2018 but latest I797 expires in Dec 2018. At port of entry I think officer may not have noticed the I797 date and gave us the Visa stamp Expiration Date. Unfortunately we did not do the due diligence since we travel out of the country quite often. my bad!

Checking with CBP and also Lawyer. Will post the outcome!skpanda,

Sorry to hear about your wife's situation.

Your last post included the crucial information that she did present the I-797 to the CBP officer with her passport. It's clear that the officer made a mistake, so the deferred inspection office is a good point to start. Whether, so long after the event, they will make the correction has an element of luck. Hopefully this works. Crossing fingers and toes for you.

If the above is unsuccessful, then 2 further choices seem to be available.

a) Some form of Nunc Pro Tunc application to USCIS to re-extend the H-4 I-94. I don't know the gritty details of this approach.

It has quite a lot of risk though. Currently your wife is both out of status and accruing unlawful presence. At this point it has run from February to nearly the end of June, which is 4-5 months depending on when the I-94 actually expired.

The problem is that a Nunc Pro Tunc approach may take time to assemble and then be considered by USCIS.

If your wife crosses 180 days of unlawful presence and the NPT is denied, then she would be subject to the 3 year bar if she left the USA.

Additionally, in the event of a denial, she would be ineligible for AOS in the future, as the time out of status would also rule out 245(k).

b) If the CBP deferred inspection route is not successful, by far the easiest route to cure the situation is for her to leave the USA before 180 days and return using a valid H4 visa, ensuring that the CBP officer uses the correct date from the I-797. I realize that current circumstances don't make this ideal.

I'm very sympathetic. After a long flight, you're tired, the brain is frazzled and you just want to get home. The situation your wife finds herself in is so easy to happen. Let's face it, not many people bother to scrutinize the I-94 information after getting home.

Hope the CBP route is successful.

Glad you are checking with a lawyer - it's the only way to go. Forum advice, while well intentioned, may not be correct, or there may be other solutions.

Best of luck.

[imdeng]

Congratulations on the baby skpanda.

I don't have specific advice for you. However, my experience with email based I-94 correction has been a positive one. A year back when I was applying for EAD renewal, I went to I-94 online and saw that they did not have the I-94 from my last arrival into ORD. Apparently they mistyped my name or something and the online system could not find the I-94. I wrote to the email address for I-94 corrections for ORD and they corrected the issue within a week. Since then I have been paranoid about I-94 and passport stamps - and check them thoroughly after each arrival.

You mentioned that you have initiated email contact. I hope you have a speedy and painless resolution to the issue.

[Immigo]

skpanda,
b) If the CBP deferred inspection route is not successful, by far the easiest route to cure the situation is for her to leave the USA before 180 days and return using a valid H4 visa, ensuring that the CBP officer uses the correct date from the I-797. I realize that current circumstances don't make this ideal.
Best of luck.
If going to Canada is an option (i.e. if you and your wife have a Canadian Visa), you can drive there, get the H4 stamped and return. Hope you can avoid the long flight with the baby. The baby will need a passport as well if you and the baby travel.

[skpanda]

skpanda,

Sorry to hear about your wife's situation.

Your last post included the crucial information that she did present the I-797 to the CBP officer with her passport. It's clear that the officer made a mistake, so the deferred inspection office is a good point to start. Whether, so long after the event, they will make the correction has an element of luck. Hopefully this works. Crossing fingers and toes for you.

If the above is unsuccessful, then 2 further choices seem to be available.

a) Some form of Nunc Pro Tunc application to USCIS to re-extend the H-4 I-94. I don't know the gritty details of this approach.

It has quite a lot of risk though. Currently your wife is both out of status and accruing unlawful presence. At this point it has run from February to nearly the end of June, which is 4-5 months depending on when the I-94 actually expired.

The problem is that a Nunc Pro Tunc approach may take time to assemble and then be considered by USCIS.

If your wife crosses 180 days of unlawful presence and the NPT is denied, then she would be subject to the 3 year bar if she left the USA.

Additionally, in the event of a denial, she would be ineligible for AOS in the future, as the time out of status would also rule out 245(k).

b) If the CBP deferred inspection route is not successful, by far the easiest route to cure the situation is for her to leave the USA before 180 days and return using a valid H4 visa, ensuring that the CBP officer uses the correct date from the I-797. I realize that current circumstances don't make this ideal.

I'm very sympathetic. After a long flight, you're tired, the brain is frazzled and you just want to get home. The situation your wife finds herself in is so easy to happen. Let's face it, not many people bother to scrutinize the I-94 information after getting home.

Hope the CBP route is successful.

Glad you are checking with a lawyer - it's the only way to go. Forum advice, while well intentioned, may not be correct, or there may be other solutions.

Best of luck.


Thanks Spec for your inputs! As always, your knowledge is unparalleled (at least in this forum).

Current status: Problem is solved.

Details:

1. I reached out to local Orlando CBP office. Explained them the situation. Their initial response was that it was our responsibility to show all relevant documents to CBP officer. They asked me many specific questions to my case such as whether i was travelling with spouse etc. At the end asked me to provide an affidavit that I have provided the latest I797 to the CBP officer at the time of port of entry.

2. At the same time I checked with my company attorney, they presented the exact same options that Spec laid out (Nunc Pro Tunc in premium processing and worst case travel to India before 6 months unlawful presence).

3. I wanted to give one last shot with the CBP before following Attorney suggestions. I emailed them with a persuasive request. I told them that I normally all the I797 that has ever been issued (for last 13 years) and also I140. I give the packet to CBP officer everytime. However, honestly I do not remember what happened in Aug 2017. I also informed them about my new born baby.

4. An hour ago, CBP responded saying they fixed the I94. I downloaded the new I94 which shows the correct date of Dec 2018. Hurraaaaay! Kudos to CBP team for being kind and compassionate!!


As a side note - Spec how do you know so much stuff. I was stumped especially when i saw you use the legal lawyer term (Nunc Pro Tunc). Hats off to you sir!

Thanks everyone who responded to my situation.

Also - How do we move these posts to appropriate forum? I tried to look for an option but could not do it!

[skpanda]

Congratulations on the baby skpanda.

I don't have specific advice for you. However, my experience with email based I-94 correction has been a positive one. A year back when I was applying for EAD renewal, I went to I-94 online and saw that they did not have the I-94 from my last arrival into ORD. Apparently they mistyped my name or something and the online system could not find the I-94. I wrote to the email address for I-94 corrections for ORD and they corrected the issue within a week. Since then I have been paranoid about I-94 and passport stamps - and check them thoroughly after each arrival.

You mentioned that you have initiated email contact. I hope you have a speedy and painless resolution to the issue.


Thanks Imdeng!! Just updated my current status above. Thankfully all went well at the end. If it wasn't our options were really scary and a big hassle for what I consider was a honest mistake.

[delguy]

Thanks Spec for your inputs! As always, your knowledge is unparalleled (at least in this forum).

Current status: Problem is solved.

Details:

1. I reached out to local Orlando CBP office. Explained them the situation. Their initial response was that it was our responsibility to show all relevant documents to CBP officer. They asked me many specific questions to my case such as whether i was travelling with spouse etc. At the end asked me to provide an affidavit that I have provided the latest I797 to the CBP officer at the time of port of entry.

2. At the same time I checked with my company attorney, they presented the exact same options that Spec laid out (Nunc Pro Tunc in premium processing and worst case travel to India before 6 months unlawful presence).

3. I wanted to give one last shot with the CBP before following Attorney suggestions. I emailed them with a persuasive request. I told them that I normally all the I797 that has ever been issued (for last 13 years) and also I140. I give the packet to CBP officer everytime. However, honestly I do not remember what happened in Aug 2017. I also informed them about my new born baby.

4. An hour ago, CBP responded saying they fixed the I94. I downloaded the new I94 which shows the correct date of Dec 2018. Hurraaaaay! Kudos to CBP team for being kind and compassionate!!


As a side note - Spec how do you know so much stuff. I was stumped especially when i saw you use the legal lawyer term (Nunc Pro Tunc). Hats off to you sir!

Thanks everyone who responded to my situation.

Also - How do we move these posts to appropriate forum? I tried to look for an option but could not do it!

Glad it worked out for you. I can understand the stress you must be going through. Just to clarify so other in similar situation are clear. Did you also visit CBP office in person or everything including affidavit was handled through email only?

[skpanda]

If going to Canada is an option (i.e. if you and your wife have a Canadian Visa), you can drive there, get the H4 stamped and return. Hope you can avoid the long flight with the baby. The baby will need a passport as well if you and the baby travel.

Thanks.. the problem is solved by CBP updating the I94. However fyi... i was told that if we have a out of status/unlawful presence, its best (may be mandated) to go to home country for visa stamp.

[skpanda]

Glad it worked out for you. I can understand the stress you must be going through. Just to clarify so other in similar situation are clear. Did you also visit CBP office in person or everything including affidavit was handled through email only?

Thanks! Everything was via email to my local CBP. They did not insist for Affidavit after my email stating that i do not remember if I have given the papers. I normally do.

[Spectator]

Thanks Spec for your inputs! As always, your knowledge is unparalleled (at least in this forum).

Current status: Problem is solved.skpanda,

I can't express how pleased I am for you!!!

I'm glad that such a stressful episode has been brought to a successful conclusion.

Hats off to the CBP personnel you dealt with for being understanding and making it relatively painless. They're not all as awful as they are sometimes painted.

[skpanda]

skpanda,

I can't express how pleased I am for you!!!

I'm glad that such a stressful episode has been brought to a successful conclusion.

Hats off to the CBP personnel you dealt with for being understanding and making it relatively painless. They're not all as awful as they are sometimes painted.

True... i was worried initially as their original response was not very friendly and kind of tried to put the blame on me. However once I replied with humility... they were so kind.

This situation could easily have taken a turn for worse since there is no official procedure for these kind of situations. Its CBPs discretion. The CBP officers were kind and understanding. I will be so grateful to them.

I had so many contingencies planned during this time....i was even making extreme plans for working in other countries in the worst case.

But all is well now all thanks to CBP officers!! This past week has been very stressful but they made it look very easy.

Also thanks to friends in this forum for being kind especially you Spec! Thanks again!

[horizon]

Thanks! Everything was via email to my local CBP. They did not insist for Affidavit after my email stating that i do not remember if I have given the papers. I normally do.

Glad it worked out for you. I faced similar situation, though I noticed the mistake a week later and not months later. My experience at the San Jose CBP was something similar. The officer asked multiple times whether I presented the I-797 to the immigration officer at the airport when I entered the US. I stuck to my stance that I presented all documents and the officer made a mistake. He finally corrected the I-94. A friend of mine faced something similar. On repeated questioning, he mentioned that he was not sure if all documents were provided to the immigration officer. He was asked to go to the San Francisco office and present his case there, resulting in more paperwork and delays for him. Just an advice to folks here facing something similar. Always mention that you presented the correct I-797 to the officer, no matter how many times you are asked that question. The local CBP wants to ensure that it was a genuine officer's mistake and that you did not commit some fraud to enter the country by not presenting all documents.

[HarepathekaIntezar]

Thanks Spec for your inputs! As always, your knowledge is unparalleled (at least in this forum).

Current status: Problem is solved.

Details:

1. I reached out to local Orlando CBP office. Explained them the situation. Their initial response was that it was our responsibility to show all relevant documents to CBP officer. They asked me many specific questions to my case such as whether i was travelling with spouse etc. At the end asked me to provide an affidavit that I have provided the latest I797 to the CBP officer at the time of port of entry.

2. At the same time I checked with my company attorney, they presented the exact same options that Spec laid out (Nunc Pro Tunc in premium processing and worst case travel to India before 6 months unlawful presence).

3. I wanted to give one last shot with the CBP before following Attorney suggestions. I emailed them with a persuasive request. I told them that I normally all the I797 that has ever been issued (for last 13 years) and also I140. I give the packet to CBP officer everytime. However, honestly I do not remember what happened in Aug 2017. I also informed them about my new born baby.

4. An hour ago, CBP responded saying they fixed the I94. I downloaded the new I94 which shows the correct date of Dec 2018. Hurraaaaay! Kudos to CBP team for being kind and compassionate!!


As a side note - Spec how do you know so much stuff. I was stumped especially when i saw you use the legal lawyer term (Nunc Pro Tunc). Hats off to you sir!

Thanks everyone who responded to my situation.

Also - How do we move these posts to appropriate forum? I tried to look for an option but could not do it!

"Nunc Pro Tunc" sounded like mumbo jumbo to me:rolleyes: But glad it worked out for you!

[skpanda]

Glad it worked out for you. I faced similar situation, though I noticed the mistake a week later and not months later. My experience at the San Jose CBP was something similar. The officer asked multiple times whether I presented the I-797 to the immigration officer at the airport when I entered the US. I stuck to my stance that I presented all documents and the officer made a mistake. He finally corrected the I-94. A friend of mine faced something similar. On repeated questioning, he mentioned that he was not sure if all documents were provided to the immigration officer. He was asked to go to the San Francisco office and present his case there, resulting in more paperwork and delays for him. Just an advice to folks here facing something similar. Always mention that you presented the correct I-797 to the officer, no matter how many times you are asked that question. The local CBP wants to ensure that it was a genuine officer's mistake and that you did not commit some fraud to enter the country by not presenting all documents.


"Nunc Pro Tunc" sounded like mumbo jumbo to me:rolleyes: But glad it worked out for you!

Thanks!!

Moderators.. how do we move these to its own I94 thread, please help!

[qesehmk]

skpanda - congratulations on the baby :o

@ your question - Bit puzzled here because I had similar experience and the solution was very simple.

About 10 years back I was returning back from India and had a day left on my H1. My new H1 was ready but not in my hand.

The CBP officer literally gave me one day on my I-94 and asked to ensure I have new H1 or leave the country in 24 hours.

My lawyer advised me to do nothing because according to her "by virtue of the new H1 I acquired status automatically as I landed in US". So I was not in any violation.

Correlating that with your situation - regardless of the I-94 stamped, your H1/4B should have its own I-94 and that becomes your status.

So not sure if there is any need to do anything. Did you speak with your lawyer?


Guys Posting here since this has most visibility. Will move it to appropriate topic soon.

H4 Extension was approved in Dec 2015 with I94 expiration date of DEC 2018.
My wife has a Visa Stamp on passport till FEB 2018.
We went out of the country in AUG 2017 and when we came back the Admit stamp on passport and I94 was given as FEB 2018. (We did not realize this until now June 2018).

The problem is 'last I94' rule applies and the I94 date from Aug 2017 is the legal date by which my wife has to stay. So in official terms, she has overstayed her visa (even though she has a H4 I797 valid till Dec 2018).

Has anybody faced this issue? If yes, how did you handle.

Anybody has inputs as to how to go about it?

Note: We just had a new born baby so we not be able to travel outside US and come back in near term.

[imdeng]

Skpanda - I am so happy for you that it worked out well and you managed to work through the stressful time for you and your family.

Events like this (and my own experience with CBP) gives us hope that despite all the negativity around immigration and immigrants in the country right now, the system still holds and works most of the time.

I have been struggling with the question of whether I "belong" in the country and the culture given past couple years. Data points like yours provide much needed anecdotal data point.

[skpanda]

skpanda - congratulations on the baby :o

@ your question - Bit puzzled here because I had similar experience and the solution was very simple.

About 10 years back I was returning back from India and had a day left on my H1. My new H1 was ready but not in my hand.

The CBP officer literally gave me one day on my I-94 and asked to ensure I have new H1 or leave the country in 24 hours.

My lawyer advised me to do nothing because according to her "by virtue of the new H1 I acquired status automatically as I landed in US". So I was not in any violation.

Correlating that with your situation - regardless of the I-94 stamped, your H1/4B should have its own I-94 and that becomes your status.

So not sure if there is any need to do anything. Did you speak with your lawyer?


Hi Q..
As per lawyer.. latest i94 date is what governs the allowed stay in USA. In our case the H4 I94 (with valid date of dec 2018) was Issued in Dec 2015. In Aug 2017 at port of entry CBP officer did not use the i797 and instead gave us i94 date of feb 2018 in line with our Visa stamp. Therefore that was the most recent I94. We did not realize untill now when I was gettimg ready to file an extension. As per lawyer and also spec we have been out of status and accruing unlawful.presence for over 4 months.

Fortunately Local CBP officers were kind and helped us out by updating the date. If this did not happen, alternate options would have been very painful for my family (especially with a new born).

Thanks to.this forum for the support!!

[skpanda]

Skpanda - I am so happy for you that it worked out well and you managed to work through the stressful time for you and your family.

Events like this (and my own experience with CBP) gives us hope that despite all the negativity around immigration and immigrants in the country right now, the system still holds and works most of the time.

I have been struggling with the question of whether I "belong" in the country and the culture given past couple years. Data points like yours provide much needed anecdotal data point.


Indeed it gives hope in you current anti immigration environment. I was telling my wife that if this was not fixed by local.cbp... we would have urgently requested birth certificatr for new born, then passport, then OCI... this would have had taken atleast 1 or 2 months. Parallel file for h4 eztension... go out of the country.. be at mercy of US consular officer..
be ready for 221g admin processing.or worse denial.. then plan on finding jobs elsewhere... plan to dispose our personal belongings and home in USA witj help.of friends... oh my such a nightmare...

We are grateful to the CBP officer who helped us... we will never forget this. (actually i did not tell my family about this until yesterday when the problem was resolved. did not want to add to the existing stress with new born keeping us on our toes)

[qesehmk]

Glad it worked out well for you.

My own experience with American officials is positive.

There are a few rotten apples in every system. But by and large American government works more fairly than in other places around the world.
Hi Q..
As per lawyer.. latest i94 date is what governs the allowed stay in USA. In our case the H4 I94 (with valid date of dec 2018) was Issued in Dec 2015. In Aug 2017 at port of entry CBP officer did not use the i797 and instead gave us i94 date of feb 2018 in line with our Visa stamp. Therefore that was the most recent I94. We did not realize untill now when I was gettimg ready to file an extension. As per lawyer and also spec we have been out of status and accruing unlawful.presence for over 4 months.

Fortunately Local CBP officers were kind and helped us out by updating the date. If this did not happen, alternate options would have been very painful for my family (especially with a new born).

Thanks to.this forum for the support!!

[Immigo]

Seeking a clarification on last I-94 rule: My wife is currently on H4 (working on EAD). Her employer had filed an H1B this April and her petition was selected with a start date of 9/15/2018. We are travelling out of the country from Mid August to September 3. My wife will be coming back on H4 and will resume work.

1) What would be her status on September 15 or October 1 2018 ? Will she automatically be on H1B ?

2) Would her employer need to file a CoS for the H1B to kick in or does the H1B kick in automatically ?

3) In case for any reason, H4-EAD recision does not happen, can she switch back to H4 by travelling out and returning on H4 and use the existing EAD, which is valid till June 2019 ?

[skpanda]

Seeking a clarification on last I-94 rule: My wife is currently on H4 (working on EAD). Her employer had filed an H1B this April and her petition was selected with a start date of 9/15/2018. We are travelling out of the country from Mid August to September 3. My wife will be coming back on H4 and will resume work.

1) What would be her status on September 15 or October 1 2018 ? Will she automatically be on H1B ?

2) Would her employer need to file a CoS for the H1B to kick in or does the H1B kick in automatically ?

3) In case for any reason, H4-EAD recision does not happen, can she switch back to H4 by travelling out and returning on H4 and use the existing EAD, which is valid till June 2019 ?

Not a Lawyer, u need to check with ur Lawyer. However my inputs based on experience.

For #1 and #2: She will have to come back on H4 EAD on 2nd Sept (Since her H1 is still not active). Change of Status need to be filed once H1B becomes active and she wants to switch to H1B. She can also go out of the country and come back with H1B (Potentially need new H1B Visa stamp).

For #3: If H4 is still active, she can either file Change of status or go out of the country and come back.

[Spectator]

Seeking a clarification on last I-94 rule: My wife is currently on H4 (working on EAD). Her employer had filed an H1B this April and her petition was selected with a start date of 9/15/2018. We are travelling out of the country from Mid August to September 3. My wife will be coming back on H4 and will resume work.

1) What would be her status on September 15 or October 1 2018 ? Will she automatically be on H1B ?

2) Would her employer need to file a CoS for the H1B to kick in or does the H1B kick in automatically ?

3) In case for any reason, H4-EAD recision does not happen, can she switch back to H4 by travelling out and returning on H4 and use the existing EAD, which is valid till June 2019 ?

Here's my view of it, but you should consult a lawyer.

There's too many contradictions in your post.

You say your wife's H1B petition was filed for in April - presumably you mean under the FY2019 cap?
You say it was selected - presumably in the lottery.

If the above are true, the start date requested cannot be September 15, 2018 because that is in FY2018 and there are no FY2018 H1B numbers left.

Under the lottery, the only acceptable date is October 1, 2018, since that is the first day of FY2019 and an H1B start date cannot be more than 6 months from the application date.

If the H1B petition was approved with COS, then it will automatically become effective on October 1, 2018, if she is in the USA at that time. The employer should update the I-9 information to reflect this. If she wasn't in the USA on October 1, 2018 then she would have to use an H1B visa to seek admission to the USA to be in H1B status.

If the H1B was approved with Consular Notification, then she would remain in H4 status until she changed status to H1B.

She would either:

a) have to get an H1B visa and use that to seek admission to the USA to be in H1B status. She could do that up to 10 days before October 1, 2018. If she was admitted to the USA in H1B status before October 1, 2018, she could not work until October 1, 2018 when the H1B employment authorization starts.

b) The employer could request a change of status. This is essentially a new H1B petition, with the costs asociated with it.

If your wife is still eligible for H4 status and uses her H4 visa to seek admission to the USA, then she would be in H4 status.

[Immigo]

Thanks Spec/skpanda for the valuable inputs. This is very helpful.


Here's my view of it, but you should consult a lawyer.

If the above are true, the start date requested cannot be September 15, 2018 because that is in FY2018 and there are no FY2018 H1B numbers left.



Clarifying above for future reference: The date of September 15, 2018 was mentioned in the LCA. However, I-129 for H1-B requested a start date of October 1, 2018 and as Spec correctly mentioned, my wife's application is for FY2019.

On a side note, this would mean my wife would have spent time on L2, followed by AOS (pending I-485 (my dependent), which was denied as I-140 was denied back in 2007), followed by H4, followed by F1, back to H4 and finally.... H1 (starting October 2018). Hopefully, one day, we will be able to look at the funny side of this situation!

[skpanda]

Friends...
Just an update: My H1B and my wife's H4 extension is approved. Waiting for Lawyer to send the package to me.