H1 Approval without I-94

Dear Gurus,

I may be posting it in wrong thread..please move it once resolved.

My niece applied for H1B in April 2015 while staying in USA.
Meanwhile, she went to India and entered USA on H4 Visa.

Her H1B is approved for 2 years but is not having a I-94.
please advice, if she can apply for change of status ? from H4 with H1 with Approved H1 document or is there any other procedure.,
we would not like to travel again to India due to expenses and possibility of getting visa rejected. Please advice.

Thank You
Tatikonda

Travel is absolutely unnecessary Tatikonda. All she needs is CoS i..e Change of status. Her H1B already has I-94. That becomes her latest I-94.

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Originally Posted by tatikonda

Dear Gurus,

I may be posting it in wrong thread..please move it once resolved.

My niece applied for H1B in April 2015 while staying in USA.
Meanwhile, she went to India and entered USA on H4 Visa.

Her H1B is approved for 2 years but is not having a I-94.
please advice, if she can apply for change of status ? from H4 with H1 with Approved H1 document or is there any other procedure.,
we would not like to travel again to India due to expenses and possibility of getting visa rejected. Please advice.

Thank You
Tatikonda

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Originally Posted by qesehmk

Travel is absolutely unnecessary Tatikonda. All she needs is CoS i..e Change of status. Her H1B already has I-94. That becomes her latest I-94.

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Q- the H1 approval has come without i94 so it seems that h1 was approved but not COS. IMO she can apply for CoS but can't work unless it's approved

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Originally Posted by suninphx

Q- the H1 approval has come without i94 so it seems that h1 was approved but not COS. IMO she can apply for CoS but can't work unless it's approved

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Sorry - I didn't notice that. I think in order to use the H1 - she either does a CoS or reenters US. She can work after that. She probably was not issued an I94 because she applied for H1 while in US. So a CoS might fix that.

On another note - I wonder if they have stopped issuing paper I94 in general. Read this

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Originally Posted by qesehmk

Sorry - I didn't notice that. I think in order to use the H1 - she either does a CoS or reenters US. She can work after that. She probably was not issued an I94 because she applied for H1 while in US. So a CoS might fix that.

On another note - I wonder if they have stopped issuing paper I94 in general. Read this

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This means the Change of Status has been approved but extension of stay got denied. In this case the applicant should leave US immediately, and re-enter US to get new I-94.

Just remember that, Mexico and Canada do not issue new I-94 as long as your old I-94 is not expired and you need to stay in those countries above 30 days.

To get more info, you should talk to your lawyer too.

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Originally Posted by richie.rich

This means the Change of Status has been approved but extension of stay got denied. In this case the applicant should leave US immediately, and re-enter US to get new I-94.

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I am not sure how to make sense of that. I-797 is the basis for stay. That is approved. Extension of stay is not even asked at this point of time because current basis for stay is H4. So when CoS is applied and approved that automatically validates the future stay.

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Originally Posted by qesehmk

I am not sure how to make sense of that. I-797 is the basis for stay. That is approved. Extension of stay is not even asked at this point of time because current basis for stay is H4. So when CoS is applied and approved that automatically validates the future stay.

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This I797 is basis of work from the dates approved. Must be starting from Sep 30 or Oct 01, 2015 with an expiration date. I94 is basis of stay along with that I797. Since your niece entered on H4 and H1 was not valid then, her H1 is valid after that date mentioned in it.

Her extension of stay is denied and you must have received a letter from USCIS along with new I797 stating the reason of rejection. Please check. In this case she should go back, get H1 visa stamp and re-enter on H1.

Again I advise you to talk to lawyer immediately. I have mentioned this based on my experience since I file all H1 cases in my company.

It is not my niece in the question. It is Tatikonda's.

Thanks for your experience. But in this case H1 is not being extended. It is simply a new H1 petition that was approved.

p.s. - Moved the discussion to its own thread.

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Originally Posted by richie.rich

This I797 is basis of work from the dates approved. Must be starting from Sep 30 or Oct 01, 2015 with an expiration date. I94 is basis of stay along with that I797. Since your niece entered on H4 and H1 was not valid then, her H1 is valid after that date mentioned in it.

Her extension of stay is denied and you must have received a letter from USCIS along with new I797 stating the reason of rejection. Please check. In this case she should go back, get H1 visa stamp and re-enter on H1.

Again I advise you to talk to lawyer immediately. I have mentioned this based on my experience since I file all H1 cases in my company.

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Originally Posted by qesehmk

It is not my niece in the question. It is Tatikonda's.

Thanks for your experience. But in this case H1 is not being extended. It is simply a new H1 petition that was approved.

p.s. - Moved the discussion to its own thread.

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Sorry about the confusion in responses. I meant Tatikonda's niece.

Well, I have been talking on new H1 approvals only. Extension of stay (I-94) is required in new, extension and all I-797.

Anyways, thanks for moving this to right thread.

I believe you are wrong in the way you characterize things.

In this case I do not believe an extension of stay was denied (because none was filed at all).

Taticonda pl confirm.

Second - it looks like a paper I94 is no longer being issued (certainly true at border crossing by air sea). Not so sure about H1.

Third - tatikonda's niece in this case can possibly get her latest i94 downloaded from - http://www.cbp.gov/I94 . And if she has a valid I94 then all she has to do is file for a CoS I-539.

There is no reason why 539 is denied because she has a good basis for CoS. If it gets denied and then she tries to go and stamp H1 in Canada or India or Mexico -- she can always return back on her H4.

However as you said -- I do think it's worthwhile to ask a lawyer.

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Originally Posted by richie.rich

Well, I have been talking on new H1 approvals only. Extension of stay (I-94) is required in new, extension and all I-797.

Anyways, thanks for moving this to right thread.

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