Wrong I-94 Date At CBP Which Has Now Expired

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Originally Posted by 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.

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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)

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.

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Originally Posted by skpanda

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!!

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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 ?

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Originally Posted by 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 ?

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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.

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Originally Posted by 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 ?

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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.

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

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Originally Posted by Spectator

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.

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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!

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