8th year H1 extention got I-797b.....what to do...Urgent

Hey GURUS....Plz help

I applied for my 8th year H1B extension and got I-797 B form approved for 3 years without I-94 and USCIS is asking me to go to Indian consulate. My current I-94 is expiring within 15 days.I had bench period for 3 months without paystubs. This was because of financial issue of client company.i have proof of e-mails and SMS from vendors. For this bench period the company (which holds my H1B) asked me to write a leave letter because of my personal reasons without pay.They sent same letters to USCIS as well. This company doesn’t have good record and in past and so many employees got rejected when gone for stamping. I know 5 employees who were rejected.

Now my questions are as below.

1)If we (me- H1B and my wife- H4) go to Indian consulate for visa stamping then what are my chances for visa approval and stamping? Will they buy my story and grant me extension? How to justify my bench period?

2)Does Indian consulate get all details and reasons from USCIS visa officer which they attached to I-797 B form?

3)If we don’t go to India for stamping and transfer my H1B visa to another company then are there any chances for visa approval with I-94? Or again they will do the same i.e I-797 B ?
Currently I am on project since last more than 7 months and it is going on good.

4)I just have 15 days before my current I-94 visa expires. So if H1B transfer to another company take more time than this date then will I be out of status? If I get denial again or I-797B again and plan to go outside of USA then will it give me trouble on USA and India airports?

I'd really appreciate your help !!!

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Originally Posted by h4togc

Hey GURUS....Plz help

I applied for my 8th year H1B extension and got I-797 B form approved for 3 years without I-94 and USCIS is asking me to go to Indian consulate. My current I-94 is expiring within 15 days.I had bench period for 3 months without paystubs. This was because of financial issue of client company.i have proof of e-mails and SMS from vendors. For this bench period the company (which holds my H1B) asked me to write a leave letter because of my personal reasons without pay.They sent same letters to USCIS as well. This company doesn’t have good record and in past and so many employees got rejected when gone for stamping. I know 5 employees who were rejected.

Now my questions are as below.

1)If we (me- H1B and my wife- H4) go to Indian consulate for visa stamping then what are my chances for visa approval and stamping? Will they buy my story and grant me extension? How to justify my bench period?

2)Does Indian consulate get all details and reasons from USCIS visa officer which they attached to I-797 B form?

3)If we don’t go to India for stamping and transfer my H1B visa to another company then are there any chances for visa approval with I-94? Or again they will do the same i.e I-797 B ?
Currently I am on project since last more than 7 months and it is going on good.

4)I just have 15 days before my current I-94 visa expires. So if H1B transfer to another company take more time than this date then will I be out of status? If I get denial again or I-797B again and plan to go outside of USA then will it give me trouble on USA and India airports?

I'd really appreciate your help !!!

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You may be in good luck with obama's recent executive order. The order tells CBP officers to ignore any previous visa issues and grant entry solely based on AP.

I hope you have an AP. Do you?

If so - talk to a lawyer and make sure that this part of EO is effective immediately and then you can travel to India and try to stamp (or NOT!) because you don't really need to stamp at all. You can come back and resume your prior status (i.e. H1). So from that perspective .. the act of going to India itself is unnecessary unless you really want to meet family.

p.s. you keep saying indian consulate. I am assuming you mean US consulate in India.

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Originally Posted by qesehmk

You may be in good luck with obama's recent executive order. The order tells CBP officers to ignore any previous visa issues and grant entry solely based on AP.

I hope you have an AP. Do you?

If so - talk to a lawyer and make sure that this part of EO is effective immediately and then you can travel to India and try to stamp (or NOT!) because you don't really need to stamp at all. You can come back and resume your prior status (i.e. H1). So from that perspective .. the act of going to India itself is unnecessary unless you really want to meet family.

p.s. you keep saying indian consulate. I am assuming you mean US consulate in India.

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Q - did you really type that reply or some one hacked your account?😄😄

On serious note to OP - if you have got h1 approval without i94 then most definaltly you need to travel out of country and get stamped. From details you have given I am assuming you do not have AP.

If you get h1 from another employer while in India then I 94 does not come into picture at all.

Finally even if you had AP and enter US using that then you do not resume H1 status automatically, you would be in parole status. This has been discussed to the death on this forum.

Lastly before travelling out of country please take advise from competent laywer even if it may seem costly at this point in time it will do good in long run. Good luck.

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Originally Posted by h4togc

Hey GURUS....Plz help

I applied for my 8th year H1B extension and got I-797 B form approved for 3 years without I-94 and USCIS is asking me to go to Indian consulate. My current I-94 is expiring within 15 days.I had bench period for 3 months without paystubs. This was because of financial issue of client company.i have proof of e-mails and SMS from vendors. For this bench period the company (which holds my H1B) asked me to write a leave letter because of my personal reasons without pay.They sent same letters to USCIS as well. This company doesn’t have good record and in past and so many employees got rejected when gone for stamping. I know 5 employees who were rejected.

Now my questions are as below.

1)If we (me- H1B and my wife- H4) go to Indian consulate for visa stamping then what are my chances for visa approval and stamping? Will they buy my story and grant me extension? How to justify my bench period?

2)Does Indian consulate get all details and reasons from USCIS visa officer which they attached to I-797 B form?

3)If we don’t go to India for stamping and transfer my H1B visa to another company then are there any chances for visa approval with I-94? Or again they will do the same i.e I-797 B ?
Currently I am on project since last more than 7 months and it is going on good.

4)I just have 15 days before my current I-94 visa expires. So if H1B transfer to another company take more time than this date then will I be out of status? If I get denial again or I-797B again and plan to go outside of USA then will it give me trouble on USA and India airports?

I'd really appreciate your help !!!

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2. Not for all applicants. If they escalate the visa processing to Administrative processing, they would issue some colored slip saying the said case is under admin processing, that is when the US consulate requests additional files from the USCIS.

3. Yes, there are chances of getting it with I-94 attached.

4. 15 days time is too short for another extension, you should be in status until the approval, the uscis must receive your application before the 15 days window, confirmed by new H1b extension Receipt Notice. If in case the second H1b is rejected for any reason you will be out of status on the day of your previous I-94 expiry. Quite risky with the limited time constraints, even with premium processing.

h42gc:

1. IMO your visa application is very likely to get rejected as USCIS/consulate probably knows about your bench period. Moroever as visa has been rejected for multiple employees from the same company, consulate is very likely to reject your visa. So prepare for the worst. That is what is likely to happen. Making up a "leave story" for these 3 months will only infuriate consulate as they already know the real story. When going to consulate, be honest. Tell them what happened regarding the bench. Don't say anything about the leave story. Consulates appreciates honesty and hates lies. Once you tell the truth they maybe lenient to you. As per H1B terms your employer is supposed to pay you all the time. Client paying them is not USCIS/consulate's concern.


2. Consulate will have lot of information regarding you when you go there. If not, they will issue a "colored slip" and put you under administrative processing till they get all the information. End result will be 99% negative.


3. If you try to transfer H1B to another company as USCIS already knows about your status violation, if they approve they will most likely approve without an I-94. Transferring to another company and then going for visa stamping has better chance of you getting a visa stamp from consulate as you could say company 'A' didn't pay me for 3 months so I am switching to a better company. Again stamping is not guaranteed, it will just give you a better chance.


4. On denial it is a tricky situation. Better check with an attorney on this.


In general I would advise that you go expecting the worst. If you have something to settle in US, better settle and go assuming you wont be able to return to US.


A wild thought ( check with an attorney):
If you have citizen child, you may still get an EAD as per Obamas new Executive order. Of course you cannot get a legal status, but you can work.

Thanks all for quick replies...

Yes I was talking about US consulate in India and no i dont have AP as my priority date is not yet current.

If I get rejection for H1B visa transfer to another company after my current I-94 expires then :

1) Can I still go to India for visa stamping for previous company where they gave me I-797 B form without I-94?
2) Will that give me any trouble on Airports in USA & India as It will be after my current I-94 expire?
3) What documents should I carry with me while travelling to prove my legal status?

I have same above questions for getting I-797B without I-94 while transfering H1B to another company as well.

Thanks again.

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Originally Posted by suninphx

Q - did you really type that reply or some one hacked your account?

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Nope ... the account is good and so is my "opinion" ... unless you show me where USCIS requires a candidate to go outside to get a visa.

Visa falls under DOS. USCIS has nothing to do with it. A visa is just a visa. USCIS has no interest in it whatsoever.

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Originally Posted by h4togc

Thanks all for quick replies...

Yes I was talking about US consulate in India and no i dont have AP as my priority date is not yet current.

If I get rejection for H1B visa transfer to another company after my current I-94 expires then :

1) Can I still go to India for visa stamping for previous company where they gave me I-797 B form without I-94?
2) Will that give me any trouble on Airports in USA & India as It will be after my current I-94 expire?
3) What documents should I carry with me while travelling to prove my legal status?

I have same above questions for getting I-797B without I-94 while transfering H1B to another company as well.

Thanks again.

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Again as I said ... none of us are lawyers. So check with lawyers.

But my understanding is that transfer of visa is nothing but issuance of a new visa. So technically your old H1 is still in good standing. You can stamp either one in India (if there is need and they are in good standing).

One can hold multiple H1 at the same time.

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Originally Posted by h4togc

Thanks all for quick replies...

Yes I was talking about US consulate in India and no i dont have AP as my priority date is not yet current.

If I get rejection for H1B visa transfer to another company after my current I-94 expires then :

1) Can I still go to India for visa stamping for previous company where they gave me I-797 B form without I-94?
2) Will that give me any trouble on Airports in USA & India as It will be after my current I-94 expire?
3) What documents should I carry with me while travelling to prove my legal status?

I have same above questions for getting I-797B without I-94 while transfering H1B to another company as well.

Thanks again.

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1. Yes valid thro' the end date.
2. Why do you complicate your position by voluntarily falling under out of status again? Are you going to try with the new H1b route?
Traveling out of US wouldn't bring any problem on a expired I-94, why would Indian airport bother about a US status expiry!
3. All approval notices related to your H1b employment, pay stubs, tax documents etc.

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Originally Posted by qesehmk

Nope ... the account is good and so is my "opinion" ... unless you show me where USCIS requires a candidate to go outside to get a visa.

Visa falls under DOS. USCIS has nothing to do with it. A visa is just a visa. USCIS has no interest in it whatsoever.

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Q - USCIS has not given him new I94 , so OP has to travel out of country. Once you do that you need to obtain visa to re-enter. And USCIS has not given him I94 because he was out of status (3 months without pay on h1). And staying past valid I94(while on H1) is generally not a good idea IMO.
It is very common that USCIS asks candidates to travel out of country and get stamping when they approve petition without I94 attached.( essentially USCIS is approving work authorization but not extension of stay)

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Originally Posted by suninphx

essentially USCIS is approving work authorization but not extension of stay)

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Thanks sun. I think that's the bottomline of what you are saying. But I am not sure I would agree with you. To me approval of work authorization amounts to granting of status from that date onwards provided the applicant chooses to use the work authorization.

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Originally Posted by qesehmk

Thanks sun. I think that's the bottomline of what you are saying. But I am not sure I would agree with you. To me approval of work authorization amounts to granting of status from that date onwards provided the applicant chooses to use the work authorization.

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Q- unfortunately, that does not work that way. Let's agree to disagree.

OP- as you have only 15 days to make decision, please consult a attorney as soon as possible and find a best way for you to move forward. I hope things work out for you eventually.

Good luck.

Us agreeing is less important than this person's need to understand what this is.

As I said - going to India and stamping an H1 in his passport doesn't accomplish anything other than give an opportunity to state dept to deny him a visa.

USCIS has no say in forcing a person to do such a thing. He should talk to an attorney and understand if USCIS can truly do just that and whether it will be binding on him.

I don't see any point in stamping. That is classic "Aaa bail muze maar". I don't think he should do that even if USCIS is asking him to unless it is legally required (which I don't think is).

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Originally Posted by suninphx

Q- unfortunately, that does not work that way. Let's agree to disagree.

OP- as you have only 15 days to make decision, please consult a attorney as soon as possible and find a best way for you to move forward. I hope things work out for you eventually.

Good luck.

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Originally Posted by qesehmk

Us agreeing is less important than this person's need to understand what this is.

As I said - going to India and stamping an H1 in his passport doesn't accomplish anything other than give an opportunity to state dept to deny him a visa.

USCIS has no say in forcing a person to do such a thing. He should talk to an attorney and understand if USCIS can truly do just that and whether it will be binding on him.

I don't see any point in stamping. That is classic "Aaa bail muze maar". I don't think he should do that even if USCIS is asking him to unless it is legally required (which I don't think is).

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Q,

There is another important aspect. It is not the stamping but the entry into US. I-94 determines the status of H1B person in US. Within 15 days or so his current I-94 expires. H1B extension didn't come with an I-94. So he has no document for status in US. That is where visa stamping and the travel back to US matters. On his re-entry he gets a new I-94 and status is re-established.

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Originally Posted by gcq

Q,

There is another important aspect. It is not the stamping but the entry into US. I-94 determines the status of H1B person in US. Within 15 days or so his current I-94 expires. H1B extension didn't come with an I-94. So he has no document for status in US. That is where visa stamping and the travel back to US matters. On his re-entry he gets a new I-94 and status is re-established.

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Thanks gcq. I think that is not the only way to acquire status. I hope h4togc shares his/her experience later on when this thing settles down.

since his current I94 is still valid, would it be advisable that he travels out of the country (say mexico) and comes back showing the new approval? Then he gets a new I94.

Please check with attorney if this is possible?

http://www.murthy.com/2013/01/21/rem...d-part-1-of-4/

though this article focuses on visitor's visa, it is applicable to H1B and H4 as well

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Visitors are limited to the amount of time granted by the CBP - normally six months, but potentially less, depending on the circumstances. These expiration dates should be closely tracked. Overstaying the amount of time granted by CBP can have serious legal consequences on one's immigration status and eligibility for future immigration benefits.

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The mistake of allowing the I-94 card to expire can have catastrophic results. In the United States, there are harsh penalties for failure to maintain status, as well as bars on reentry for those who have extended periods of unlawful presence.

Generally, once a person has fallen out of lawful nonimmigrant status, s/he is no longer allowed to extend or change status without leaving the United States. This procedure is expensive, inconvenient, and can be risky. More importantly, if one has overstayed the time allowed to remain in the U.S., her/his visa will be canceled. Renewal of the visa in that instance will require an application in the home country. One who has been unlawfully present for 180 days or more, will be barred from reentering the U.S. for three years from the date of departure. One year or more of unlawful presence triggers a ten-year bar on reentry to the United States. Counting the time one is unlawfully present is not always straightforward. Thus, if this problem is discovered, it is vital to get qualified immigration legal advice before making any decisions.

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Originally Posted by skpanda

since his current I94 is still valid, would it be advisable that he travels out of the country (say mexico) and comes back showing the new approval? Then he gets a new I94.

Please check with attorney if this is possible?

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Assuming he does have a valid visa stamp in his passport which is going to expire in the next 15 days, he can do that.

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Originally Posted by qesehmk

Thanks gcq. I think that is not the only way to acquire status. I hope h4togc shares his/her experience later on when this thing settles down.

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Q, you are correct. There are two ways to acquire status.

1. By departing US and arriving at any POE , get admitted into the country on H1B status at the CBP( new I-94 card)

2. By filing new H1B extension with another employer on a emergency basis( premium) getting approval notice in the I-797A format not I-797B format.

My opinion is that he is eligible for I-797A ( with I94 attached ) because he was unemployed for some time and reinstated his status by resuming his job. He was in valid status at the time of his renewal. I think his lawyer has specifically selected the non status extension approval.

The problem here is, he is left with limited time to proceed with the second option.

I concur with suninphx here based on my own experience and guidance from lawyer. earlie when my H1 and depednets H4 were applied for extension, they approved the H1 with I-94s attached and H4's without. Lawyer, suggest they need to travel outside and go for stampling before their current I-94 expires. which we did.

Also to an earlier question, it benefits to be truthful with USCIS (atleast in my case). My previous employer (Company A) did not pay me for a few months when on bench and did say in the employment letter that I was still employed with them. When I applied for a H1 transfer to another compnay (Company B), USCIS raised a RFE for the paystubs for that period. HR from Company B gave a clear answer saying Employer A did not pay during the period and it should be considered as no fault of the employee and request for approval of H1 transfer as a response to RFE and USCIS approved the transfer with I-94 attached.

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Originally Posted by suninphx

Q- unfortunately, that does not work that way. Let's agree to disagree.

OP- as you have only 15 days to make decision, please consult a attorney as soon as possible and find a best way for you to move forward. I hope things work out for you eventually.

Good luck.

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Originally Posted by srimurthy

I concur with suninphx here based on my own experience and guidance from lawyer. earlie when my H1 and depednets H4 were applied for extension, they approved the H1 with I-94s attached and H4's without. Lawyer, suggest they need to travel outside and go for stampling before their current I-94 expires. which we did.

Also to an earlier question, it benefits to be truthful with USCIS (atleast in my case). My previous employer (Company A) did not pay me for a few months when on bench and did say in the employment letter that I was still employed with them. When I applied for a H1 transfer to another compnay (Company B), USCIS raised a RFE for the paystubs for that period. HR from Company B gave a clear answer saying Employer A did not pay during the period and it should be considered as no fault of the employee and request for approval of H1 transfer as a response to RFE and USCIS approved the transfer with I-94 attached.

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Yes, this is a very significant factor in situations like this. It is not employee's fault that employer didn't pay him. Employee doesn't have much control over the situation.

Kanmani thanks. But I think the things are pretty straightforward here.

Here are the facts:
1. I-94 is just the arrival and departure record. That by itself doesn't constitute status. Read about I94 here https://help.cbp.gov/app/answers/det...ion-of-an-i-94 . I94 does have an expiry but that is overwritten if a new 797 is issued.
2. 797A and 797B - read here. http://www.uscis.gov/i-797-info . The only difference is A has I-94 and B doesn't. And that's about it.

I really do not think having (or not having) I94 attached to 797 makes any difference if you are already in the US. The H1B approval notice (whether A or B) should allow you to continue your H1B status.

p.s. - Srimurthy I appreciate your experience but I am afraid the lawyer may have been wrong here. He made you an unnecessary trip to India - which is always a good thing for me - but just saying it probably was not necessary.

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Originally Posted by qesehmk

I94 does have an expiry but that is overwritten if a new 797 is issued.

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Q, I think new 797 overrides an existing I-94 only if a new I-94 issued along with 797(797-A). One doesn't need a visa stamp in passport to stay but one needs to have a valid I-94 to legally stay and work. 797B will not let a person continue to work in my opinion.

My problem with that theory is that there is no logic behind it.

USCIS can't approve work authorization and then say sorry I can't give you a status even if you are in US. Doesn't make any sense.

May be the applicant / or beneficiary pick up the phone and ask USCIS ... why spend money on lawyer. Let USCIS tell what it is.

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Originally Posted by Transformer

Q, I think new 797 overrides an existing I-94 only if a new I-94 issued along with 797(797-A). One doesn't need a visa stamp in passport to stay but one needs to have a valid I-94 to legally stay and work. 797B will not let a person continue to work in my opinion.

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Q: I wish you are correct, but i am afraid not here.

As per the H1B rules(i don't have a link to point to) the day employee is out of work, doesn't matter weather he has valid I797 or I94, he is out of status.
it could even be a single day.

Having said that, this person's employer has them self proved that he is on bench for 3 months with out pay.
You can blame employer for not paying, but the bottom line is employee out of status for 3 months.
That is the reason why USCIS did not issue I94.

h4togc:
I think the issue here is with your previous stay, so I don't think USCIS would issue I94, changing the employer.
So I suggest, re-enter would be a good option. But again, I am not a attorney.