H1 Extension and I94 expiry

[makmohan]

My new employer has filed for LCA last week for my H1B extension based on my approved I140. My I94 expires in couple of weeks.

I know I'm good if my H1 receipt date is before I94 end date.

What happens to my status if my H1B application reaches USCIS after I94 date or if application received date on the receipt is after I94 date?

I also have an approved EAD/AP with I485 pending for more than 180 days. But new employer is keen to hire me on H1 instead of EAD.

Any input is appreciated,
- Makmohan

[makmohan]

Friends, any help on this question?

[Spectator]

My new employer has filed for LCA last week for my H1B extension based on my approved I140. My I94 expires in couple of weeks.

I know I'm good if my H1 receipt date is before I94 end date.

What happens to my status if my H1B application reaches USCIS after I94 date or if application received date on the receipt is after I94 date?

I also have an approved EAD/AP with I485 pending for more than 180 days. But new employer is keen to hire me on H1 instead of EAD.

Any input is appreciated,
- Makmohan

I'll have a go at it. I think I know the law, but not necessarily what USCIS will actually do.

If the I-94 expires before the H1B application is received, you are both out of status and accruing unlawful presence.

That will likely be tolled from the date the H1B application is received until a decision is made.

When USCIS adjudicate the case, since you were not in status at the time of receipt, they should approve the H1B petition, but deny the EOS request.

That would mean having to leave the USA and being re-admitted using a valid H1B visa.

Whether USCIS "overlook" a short gap - I do not know. In theory they don't have a choice.

[qesehmk]

I think Spec overlooked your AOS status based on your pending 485.

So Spec would be right if you didn't have that. But since you have it - you won't be out of status or accrue unlawful presence. However it would be not prudent to stay employed using H1. So technically you can use your EAD for the short duration when your H1 is not received and I94 is expired.

Overall - I think yours is a very small technicality. No need to lose sleep over it. All the best!

[Spectator]

I think Spec overlooked your AOS status based on your pending 485.

So Spec would be right if you didn't have that. But since you have it - you won't be out of status or accrue unlawful presence. However it would be not prudent to stay employed using H1. So technically you can use your EAD for the short duration when your H1 is not received and I94 is expired.

Overall - I think yours is a very small technicality. No need to lose sleep over it. All the best!

Q,

Thanks for the correction. With the AOS pending it is not possible to accrue unlawful presence.

[makmohan]

Thanks very much, Spec and Q.

That will likely be tolled from the date the H1B application is received until a decision is made.

Employer is filing premium processing so should know about it in at most couple of weeks.

So technically you can use your EAD for the short duration when your H1 is not received and I94 is expired.

But then I would technically loose non-immigrant status and won't be able to get back to it.

However it would be not prudent to stay employed using H1.

It can be the period when I can resign and wait for new result, probably?

It would be ideal to have my new I129 "received date" before my I94 expiry date.

This is all because new job is not same but is similar and lawyers feel good about continuing non-immigrant status in case things go sour during 485 adjudication.

[qesehmk]

But then I would technically loose non-immigrant status and won't be able to get back to it.

I think you mean H1 renewal rejection based on the fact that H1 is already expired. Your H1 status will anyway expire right?
So the renewal rejection risk is there regardless your use of EAD. I don't see how using EAD will impact +ve or -vely your chances of H1 renewal/extension approval.

It can be the period when I can resign and wait for new result, probably? - I don't see any correlation between risk to H1 extension/renewal and use of EAD or NOT.

It would be ideal to have my new I129 "received date" before my I94 expiry date. Absolutely

This is all because new job is not same but is similar and lawyers feel good about continuing non-immigrant status in case things go sour during 485 adjudication. That is true. But somebody is doing you a disservice by delaying H1 extension filing so late that your I94 is expiring. If it is a renewal (i.e. second set of 3 years) then you are safe. But if it is an extension beyond initial 6 years then there could be a risk of rejection in case USCIS receives your application after expiry of current H1 because your H1 would already be expired. So it might be agood idea to ask your lawyers what that risk is and how you should be prepared for it.

[Spectator]

I think you mean H1 renewal rejection based on the fact that H1 is already expired. Your H1 status will anyway expire right?
So the renewal rejection risk is there regardless your use of EAD. I don't see how using EAD will impact +ve or -vely your chances of H1 renewal/extension approval.

Q,

I think the point is that for the EOS to be approved and receive a new I-94, the application needs to be received while the person is still in status. If the I-94 expires before the application is received, the danger is that the H1B will be approved, but with Consular Processing.

[qesehmk]

Spec I am not sure if h1 extension works with CP at all. If in CP, there is no basis for H1B extension beyond 6 years. Right? The whole 7th year and beyond extension is meant for applicants who already are in US and for whom PERM has been filed at least 1 year back.

Q,

I think the point is that for the EOS to be approved and receive a new I-94, the application needs to be received while the person is still in status. If the I-94 expires before the application is received, the danger is that the H1B will be approved, but with Consular Processing.

[makmohan]

So technically you can use your EAD for the short duration when your H1 is not received and I94 is expired.

I think you mean H1 renewal rejection based on the fact that H1 is already expired. Your H1 status will anyway expire right?

It was regarding earlier quote. If I use EAD during the short duration you mentioned before, then I would loose non-immigrant status due to that use of EAD and may not be able to use H1 (non-immigrant status) again even if it is approved.

[qesehmk]

You will lose the non-immigrant status upon expiration of H1 or use of EAD whatever happens first. Doesn't mean you can't use it again. H1 is dual intent. So you can simply go out of the country and come back again using H1. Perhaps you can simply start using H1 again without problems. I am 99% sure that is possible. Check w your lawyers.

As long as you have an H1 to fall back upon you are fine. I think that's what your lawyers are advocating.

The problem here is that if you happen to lose H1 status upon expiration of 797, after that USCIS may object to an H1 extension based on the fact that they can't extend an expired H1. That's what you should be more worried about rather than lapse of non-immigrant status. It doesn't matter why you lost it - neither it is true that you will lose it permanently and can't use H1 after that.

It was regarding earlier quote. If I use EAD during the short duration you mentioned before, then I would loose non-immigrant status due to that use of EAD and may not be able to use H1 (non-immigrant status) again even if it is approved.

[Spectator]

Spec I am not sure if h1 extension works with CP at all. If in CP, there is no basis for H1B extension beyond 6 years. Right? The whole 7th year and beyond extension is meant for applicants who already are in US and for whom PERM has been filed at least 1 year back.

Q,

Consular Processing of the H1B - as in having to get an H1B visa if the previous one has expired. Let's face it, no one wants to do that unless absolutely necessary.

If the person still has a valid H1B visa, then they can just depart the USA and return, showing the new I-797 with the visa to get an I-94 for the full period approved.

A person may have to leave the USA because they have no other status to fall back on and to wait for either the PERM to have been pending 365 days, or for the I-140 to be approved.

[makmohan]

Thanks Q and Spec. Really appreciate your response.

Things will be clear in couple of weeks (employer doing premium processing). Things are down to the wire because of 3 federal holidays during this period. Let's see how things unfold.

Thanks again!

[qesehmk]

Spec - there is no such thing as H1 approval with CP. H1 is basically work authorization (just like EAD). A visa only allows you to enter the country. So if Mak's H1 is approved - there won't be any explicit condition where he will be asked to go outside US to process it. But he may very well have to do just that - if he is out of status even for a day or two. The reason being - one can switch status when previous status was still valid. But when one is not in status - how does that person acquire status?

That is the question only a lawyer will be able to answer. I am not knowledgeable enough to precedents or practices in that situation.

Q,

Consular Processing of the H1B - as in having to get an H1B visa if the previous one has expired. Let's face it, no one wants to do that unless absolutely necessary.

If the person still has a valid H1B visa, then they can just depart the USA and return, showing the new I-797 with the visa to get an I-94 for the full period approved.

A person may have to leave the USA because they have no other status to fall back on and to wait for either the PERM to have been pending 365 days, or for the I-140 to be approved.

[Spectator]

Spec - there is no such thing as H1 approval with CP. H1 is basically work authorization (just like EAD). A visa only allows you to enter the country. So if Mak's H1 is approved - there won't be any explicit condition where he will be asked to go outside US to process it. But he may very well have to do just that - if he is out of status even for a day or two. The reason being - one can switch status when previous status was still valid. But when one is not in status - how does that person acquire status?

That is the question only a lawyer will be able to answer. I am not knowledgeable enough to precedents or practices in that situation.

Q,

That is exactly what I am saying.

It is referred to as H1B with Consular Processing, as opposed to the extension of status being approved.

If Mak becomes out of status, that is what he would have to do, since presumably any previous visa expired with the I-94. As you and me have both said, if the person still has a valid visa then they can leave the USA and return using it after the new H1B is approved.

Just a terminology difference. Nothing to worry about.

Hopefully it is an academic discussion.

[qesehmk]

Thanks Spec. We are on the same page!

Q,

That is exactly what I am saying.

It is referred to as H1B with Consular Processing, as opposed to the extension of status being approved.

If Mak becomes out of status, that is what he would have to do, since presumably any previous visa expired with the I-94. As you and me have both said, if the person still has a valid visa then they can leave the USA and return using it after the new H1B is approved.

Just a terminology difference. Nothing to worry about.

Hopefully it is an academic discussion.