I-94/Visa expired; Extension Approval Pending; Can I leave US?
Dec 24th 2003, 12:25 am
#1
Guest
Posts: n/a
I-94/Visa expired; Extension Approval Pending; Can I leave US?
Hi,
My H-1B expired on Dec 1st. My I-94 was also for Dec 1st. I applied for
H-1B extension (not premium processing)and CIS acknowledged receipt on
September 25th.
Because of timely filing, I think I am on status.
However, I've an opportunity in India that requires me to relocated
during first week of February. According to CIS' processing time, it
might take 120 days to process my application; which means I'll get the
approval (with the new I-94 also, right?) by January 25.
Questions:
1) Is it OK to travel outside US? I am not planning to return any time soon.
2) If CIS doesn't get the processing done on time, will it be recorded
that I've "overstayed", when I leave US?
3) Is there any report I can get from CIS that explains "I'm in status,
pending my case processsing"?
4) If it does get recorded as an overstay, are there any implications
when I have to take up short business trips to US; say 1 year later?
Thanks in advance
VZ
My H-1B expired on Dec 1st. My I-94 was also for Dec 1st. I applied for
H-1B extension (not premium processing)and CIS acknowledged receipt on
September 25th.
Because of timely filing, I think I am on status.
However, I've an opportunity in India that requires me to relocated
during first week of February. According to CIS' processing time, it
might take 120 days to process my application; which means I'll get the
approval (with the new I-94 also, right?) by January 25.
Questions:
1) Is it OK to travel outside US? I am not planning to return any time soon.
2) If CIS doesn't get the processing done on time, will it be recorded
that I've "overstayed", when I leave US?
3) Is there any report I can get from CIS that explains "I'm in status,
pending my case processsing"?
4) If it does get recorded as an overstay, are there any implications
when I have to take up short business trips to US; say 1 year later?
Thanks in advance
VZ
Dec 26th 2003, 5:17 am
#2
Forum Regular
Joined: Aug 2002
Posts: 48
Re: I-94/Visa expired; Extension Approval Pending; Can I leave US?
You should have a receipt number for your extension application. This should be enough to prove you are currently in status until the paperwork is processed.
What you'll get back from the BCIS is a new Notice of Action I797A form, with a new I94 on the bottom. This extends your right to stay in the USA to the date on the new I94.
It really would be better if you didn't leave the USA until you receive your new I797A. You need that new I94 to surrender upon departure, otherwise it looks as though you were indeed out of status (even when you weren't).
If you leave the USA at all, you have to surrender your old and new I94 cards on departure. You would then have to use the new Notice of Action I797A form you received to apply for a new Visa from (preferably) your home country. Actually, if you travelled to Canada, they might not take your I94, but that's an exception.
So if you don't apply for a new Visa in your passport, you can't re-enter the USA with only the new I797A and be allowed to work. You need the new Visa because you left the country and surrendered the valid I94.
From your Q1, it sounds like you don't have a job in the US anyway, which would make you instantly out of status regardless.
Re-entering the USA on an H1B after an extended period outside the USA might raise some difficult questions from the BCIS upon entry along the lines of "can you prove you still have a job here?" and "can you prove you were outside the USA on your H1B companies business?" They're not known for their accommodating attitude at the best of times and these certainly aren't the best of times for non-citizens to be entering the USA.
What you'll get back from the BCIS is a new Notice of Action I797A form, with a new I94 on the bottom. This extends your right to stay in the USA to the date on the new I94.
It really would be better if you didn't leave the USA until you receive your new I797A. You need that new I94 to surrender upon departure, otherwise it looks as though you were indeed out of status (even when you weren't).
If you leave the USA at all, you have to surrender your old and new I94 cards on departure. You would then have to use the new Notice of Action I797A form you received to apply for a new Visa from (preferably) your home country. Actually, if you travelled to Canada, they might not take your I94, but that's an exception.
So if you don't apply for a new Visa in your passport, you can't re-enter the USA with only the new I797A and be allowed to work. You need the new Visa because you left the country and surrendered the valid I94.
From your Q1, it sounds like you don't have a job in the US anyway, which would make you instantly out of status regardless.
Re-entering the USA on an H1B after an extended period outside the USA might raise some difficult questions from the BCIS upon entry along the lines of "can you prove you still have a job here?" and "can you prove you were outside the USA on your H1B companies business?" They're not known for their accommodating attitude at the best of times and these certainly aren't the best of times for non-citizens to be entering the USA.
Dec 27th 2003, 4:24 am
#3
Guest
Posts: n/a
Re: I-94/Visa expired; Extension Approval Pending; Can I leave US?
Please see my responses below
Michael E. Piston
Attorney at Law
Michael E. Piston P.C.
4000 Livernois Ste 110
Troy, MI 48098
248/680-0600
Direct fax: 206/770-6350
The statements above have not been confirmed by legal research, and
are not intended as legal advice nor to create an attorney-client
relationship.SEND ANY FOLLOW-UP QUESTIONS DIRECTLY TO
[email protected]. DO NOT POST FOLLOW-UPS TO THE NEWSGROUP.
Hi,
My H-1B expired on Dec 1st. My I-94 was also for Dec 1st. I applied
for
H-1B extension (not premium processing)and CIS acknowledged receipt on
September 25th.
Because of timely filing, I think I am on status.
However, I've an opportunity in India that requires me to relocated
during first week of February. According to CIS' processing time, it
might take 120 days to process my application; which means I'll get
the
approval (with the new I-94 also, right?) by January 25.
Questions:
1) Is it OK to travel outside US? I am not planning to return any time
soon.
MEP: You may leave, but you may not return until your new H-1B
petition is approved and you obtain a new H-1B visa at a consulate.
2) If CIS doesn't get the processing done on time, will it be recorded
that I've "overstayed", when I leave US?
MEP: The computer may well show this, but you can overcome this with
evidence of your timely filing (i.e. a fee receipt for your H-1B
extension as well as a print out from the computer on the day of your
departure showing that it is still pending).
3) Is there any report I can get from CIS that explains "I'm in
status,
pending my case processsing"?
MEP: You can get something saying your case is pending here:
https://egov.immigration.gov/graphic...d=cShuc0_7OR46
4) If it does get recorded as an overstay, are there any implications
when I have to take up short business trips to US; say 1 year later?
MEP: If you were considered an overstay you would have to obtain any
future visa only at a consulate in your home country and you would
probably find it considerably more difficult to obtain visas or
admission to the U.S. in the future, particularly in a classification
which required proof that you did not intend to immigrate to the U.S.
Thanks in advance
VZ
Michael E. Piston
Attorney at Law
Michael E. Piston P.C.
4000 Livernois Ste 110
Troy, MI 48098
248/680-0600
Direct fax: 206/770-6350
The statements above have not been confirmed by legal research, and
are not intended as legal advice nor to create an attorney-client
relationship.SEND ANY FOLLOW-UP QUESTIONS DIRECTLY TO
[email protected]. DO NOT POST FOLLOW-UPS TO THE NEWSGROUP.
Hi,
My H-1B expired on Dec 1st. My I-94 was also for Dec 1st. I applied
for
H-1B extension (not premium processing)and CIS acknowledged receipt on
September 25th.
Because of timely filing, I think I am on status.
However, I've an opportunity in India that requires me to relocated
during first week of February. According to CIS' processing time, it
might take 120 days to process my application; which means I'll get
the
approval (with the new I-94 also, right?) by January 25.
Questions:
1) Is it OK to travel outside US? I am not planning to return any time
soon.
MEP: You may leave, but you may not return until your new H-1B
petition is approved and you obtain a new H-1B visa at a consulate.
2) If CIS doesn't get the processing done on time, will it be recorded
that I've "overstayed", when I leave US?
MEP: The computer may well show this, but you can overcome this with
evidence of your timely filing (i.e. a fee receipt for your H-1B
extension as well as a print out from the computer on the day of your
departure showing that it is still pending).
3) Is there any report I can get from CIS that explains "I'm in
status,
pending my case processsing"?
MEP: You can get something saying your case is pending here:
https://egov.immigration.gov/graphic...d=cShuc0_7OR46
4) If it does get recorded as an overstay, are there any implications
when I have to take up short business trips to US; say 1 year later?
MEP: If you were considered an overstay you would have to obtain any
future visa only at a consulate in your home country and you would
probably find it considerably more difficult to obtain visas or
admission to the U.S. in the future, particularly in a classification
which required proof that you did not intend to immigrate to the U.S.
Thanks in advance
VZ
