797 vs 6 Year Expiry

Dear All, I have a question on I-797 vs 6 year expiry period. I posted it originally under "Live Discussion" but can not find it. Moreover, I respect a lot of users on this forum so posting it here. Please feel free to move it to the right place.
My 6 years on H1B are getting over end of Oct 2012. I do not have LC or I-140 filed yet. Couple of months ago I received approved I-797 which is valid until Dec 2014 (yes, 2 years and 2 month post 6 years expiry). Can I ignore my 6 years limit and continue to work under this approved I-797? Please advise. Thanks.

I am afraid your other I-797 would not be helpful as the six year count starts from the initial H1 period that you have. However what I have seen most often by some of my colleagues is, if you have any presence outside of the country during the stipulated 6 year interval of your H1, you can apply for extension of your H1 by providing a substantiated claim regarding extension.

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Originally Posted by ggk189

I am afraid your other I-797 would not be helpful as the six year count starts from the initial H1 period that you have. However what I have seen most often by some of my colleagues is, if you have any presence outside of the country during the stipulated 6 year interval of your H1, you can apply for extension of your H1 by providing a substantiated claim regarding extension.

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He does have a "real" 797, so in theory he has a legitimate claim to staying longer. During stamping, they just see the 797validity.

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Originally Posted by gcvisa

Dear All, I have a question on I-797 vs 6 year expiry period. I posted it originally under "Live Discussion" but can not find it. Moreover, I respect a lot of users on this forum so posting it here. Please feel free to move it to the right place.
My 6 years on H1B are getting over end of Oct 2012. I do not have LC or I-140 filed yet. Couple of months ago I received approved I-797 which is valid until Dec 2014 (yes, 2 years and 2 month post 6 years expiry). Can I ignore my 6 years limit and continue to work under this approved I-797? Please advise. Thanks.

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Tread carefully but I believe you can still stay around. Talk to your lawyers who did your H1. Also look at the support paperwork that's filed. You should get some input from there.

I don't see why u should notuse the 797 to the fullest.
On another note did u by any chance have a gap of 1 or more year inured h1 usage.

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Originally Posted by gcvisa

Dear All, I have a question on I-797 vs 6 year expiry period. I posted it originally under "Live Discussion" but can not find it. Moreover, I respect a lot of users on this forum so posting it here. Please feel free to move it to the right place.
My 6 years on H1B are getting over end of Oct 2012. I do not have LC or I-140 filed yet. Couple of months ago I received approved I-797 which is valid until Dec 2014 (yes, 2 years and 2 month post 6 years expiry). Can I ignore my 6 years limit and continue to work under this approved I-797? Please advise. Thanks.

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Originally Posted by qesehmk

I don't see why u should notuse the 797 to the fullest.
On another note did u by any chance have a gap of 1 or more year inured h1 usage.

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Yeah.
But do make sure with lawyer though and make sure you don't have any unlawful presence in the US which will cause lots of problems (and 5-10yr ban on entry). Just make sure, the 797 was not issued in mistake and that your presence is lawful.

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Originally Posted by gcvisa

Dear All, I have a question on I-797 vs 6 year expiry period. I posted it originally under "Live Discussion" but can not find it. Moreover, I respect a lot of users on this forum so posting it here. Please feel free to move it to the right place.
My 6 years on H1B are getting over end of Oct 2012. I do not have LC or I-140 filed yet. Couple of months ago I received approved I-797 which is valid until Dec 2014 (yes, 2 years and 2 month post 6 years expiry). Can I ignore my 6 years limit and continue to work under this approved I-797? Please advise. Thanks.

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gcvisa,

Should you have provided how you received the latest I-797 valid upto Dec 2014 , we might have captured the clear picture of your case. Unless you apply for H1b extension you cannot simply receive an extension.

If your company's lawyer applied for an extension without a 365 days pending LC/approved I-140 for your stay beyond 6 yrs, then the approval was a mistake.

If there was a 1 year break in your US stay during those 6 years of H1b approval you are good to use the extension.

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Originally Posted by Kanmani

gcvisa,

Should you have provided how you received the latest I-797 valid upto Dec 2014 , we might have captured the clear picture of your case. Unless you apply for H1b extension you cannot simply receive an extension.

If your company's lawyer applied for an extension without a 365 days pending LC/approved I-140 for your stay beyond 6 yrs, then the approval was a mistake.

If there was a 1 year break in your US stay during those 6 years of H1b approval you are good to use the extension.

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My 6-year expiry next month captures the time that I spent outside the country. My old 797 expired in Dec 2011 and my lawyers filed for an extension. I received RFI that the extension asked is more than 6 years. My lawyers sent all relevant information (in-out dates from the country) and applied again. I was expecting an approval until end of next month. But, a couple of months ago, I received approved 797 which is valid from Jan 2012 to Dec 2014. I think someone made a mistake. Is it illegal to use this approved 797 to continue working? What are the risks? I have no faith in my company's lawyers (they are a bunch of jokers).

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Originally Posted by gcvisa

My 6-year expiry next month captures the time that I spent outside the country. My old 797 expired in Dec 2011 and my lawyers filed for an extension. I received RFI that the extension asked is more than 6 years. My lawyers sent all relevant information (in-out dates from the country) and applied again. I was expecting an approval until end of next month. But, a couple of months ago, I received approved 797 which is valid from Jan 2012 to Dec 2014. I think someone made a mistake. Is it illegal to use this approved 797 to continue working? What are the risks? I have no faith in my company's lawyers (they are a bunch of jokers).

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I think you should consult an attorney for clarification because, in the later stage when and if you have an intention to start a GC process ,this might cause confusion while filling up forms with the details of your continuous stay in US.

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Originally Posted by gcvisa

My 6-year expiry next month captures the time that I spent outside the country. My old 797 expired in Dec 2011 and my lawyers filed for an extension. I received RFI that the extension asked is more than 6 years. My lawyers sent all relevant information (in-out dates from the country) and applied again. I was expecting an approval until end of next month. But, a couple of months ago, I received approved 797 which is valid from Jan 2012 to Dec 2014. I think someone made a mistake. Is it illegal to use this approved 797 to continue working? What are the risks? I have no faith in my company's lawyers (they are a bunch of jokers).

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I guess no one here can give you a right or wrong answer for your situation. since your extension has been granted after a specific time frame RFE, you are relatively safe even though its a mistake on their part. ( try to check the in-out dates provided by your lawyer were correct, if they are wrong it will bite you down the road and you will be misrepresenting/fraud)

consult a good lawyer though.

For the below statement

"He does have a "real" 797, so in theory he has a legitimate claim to staying longer. During stamping, they just see the 797validity."

Agreed that he does have an approved 797, but in matters pertaining to legitimacy of an approved stay, the onus lies with the petitioner even though the mistake is committed of an extended approval has been given by the issuing authority".

The above is what I could gather when faced with similar circumstance. There is a possibility that it could be interpreted in multiple ways .

As noted by others a good attorney can decipher more.

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Originally Posted by vizcard

He does have a "real" 797, so in theory he has a legitimate claim to staying longer. During stamping, they just see the 797validity.



Tread carefully but I believe you can still stay around. Talk to your lawyers who did your H1. Also look at the support paperwork that's filed. You should get some input from there.

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Originally Posted by ggk189

For the below statement

"He does have a "real" 797, so in theory he has a legitimate claim to staying longer. During stamping, they just see the 797validity."

Agreed that he does have an approved 797, but in matters pertaining to legitimacy of an approved stay, the onus lies with the petitioner even though the mistake is committed of an extended approval has been given by the issuing authority".

The above is what I could gather when faced with similar circumstance. There is a possibility that it could be interpreted in multiple ways .

As noted by others a good attorney can decipher more.

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Government errors do not create substantive rights. You should assume any days past your 6th year will be considered as out-of-status, which could prevent you from adjusting status or gaining citizenship down the road. USCIS is under no obligation to recognzie their error. You should obtian an amended I-797 listing the correct dates. This should be free of charge.

gcvisa: What I gather is that INS may have approved your H1B for 2 Years 2 months based on your actual presence on H1B in USA.

Example: If your first H1B was approved from say 1 Oct 2006 then logically your 6 year period ends on 30 Sep 2012.

Now, if you were in India or for that matter outside of US between 1 Oct 2006 to say 30 Nov 2007 and entered US on H1B on 1st Dec 2007, then it means you did not use 1 year and 2 months of your initial 3 year term on H1B. So you can claim this 1 yr 2 mths later. This kind of case is normal with Indian IT companies who file for H1B of certain employees in India but do not actually send them on US projects on specified dates as per approved H1B (I797).

Basically what you have to do is count your ACTUAL/PHYSICAL presence in US on H1B and not as per the paper approval ie I797 document dates.

I hope this helps.

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Originally Posted by gcvisa

Dear All, I have a question on I-797 vs 6 year expiry period. I posted it originally under "Live Discussion" but can not find it. Moreover, I respect a lot of users on this forum so posting it here. Please feel free to move it to the right place.
My 6 years on H1B are getting over end of Oct 2012. I do not have LC or I-140 filed yet. Couple of months ago I received approved I-797 which is valid until Dec 2014 (yes, 2 years and 2 month post 6 years expiry). Can I ignore my 6 years limit and continue to work under this approved I-797? Please advise. Thanks.

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