H1B extension, previous overstay
Aug 30th 2003, 1:55 pm
#1
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Joined: Dec 2002
Posts: 4
H1B extension, previous overstay
My H1B visa and status (I94) are valid unitil, April,2004. This is my first extension and my problem is that before I got my H1B I overstayed less than 6 month.
I was warned at US Consulate that for an extension I will need to come back in my home country. (no Canada nor Mexic)
I just spoke with my lawyer and he told me that I can get I94 along with the approved petition.
Should I apply for an extension as soon as posible (6 months befere limit), using normal or premium proccesing ?
I read somewhere that you can't change your status once you overstayed. I am trying to extend my status and not to change it.
Where can I find a reference about this law ?
I'm trying to avoid beeing out of status again.
Thanks.
I was warned at US Consulate that for an extension I will need to come back in my home country. (no Canada nor Mexic)
I just spoke with my lawyer and he told me that I can get I94 along with the approved petition.
Should I apply for an extension as soon as posible (6 months befere limit), using normal or premium proccesing ?
I read somewhere that you can't change your status once you overstayed. I am trying to extend my status and not to change it.
Where can I find a reference about this law ?
I'm trying to avoid beeing out of status again.
Thanks.
Aug 30th 2003, 7:01 pm
#2
Guest
Posts: n/a
Re: H1B extension, previous overstay
Unfortunately, I have to agree with the consulate on this one. You can
only extend your H-1B if you have an immaculate track record, immigration
wise. A previous overstay basically means that you are ineligible to
extend status.
The law actually is less clear on this than I would like. The relevant
section in the regulations is 8 CFR 248.1(b). (you can find it on the BCIS
Web site. A link is on my FAQ page). The reason I'm saying it's not clear
is that a literal reading of the regulations seems to suggest that you are
only ineligible of you failed to maintain "the previously accorded
status". One could read this as meaning, only the immediately preceding
status counts.
Legally, this could be good news, although I don't know if it will help
you. You could file the extension and claim the automatic 240 day
extension to continue working. If BCIS approves the extension and sends a
new I-94, you would indeed be clear. If not, you could go to the consulate
and apply for the new H-1B visa. When challenged on the fact that you
overstayed again this time, legally your position would be that you had a
reasonable reason to expect an approval of the extension.
However, in the end it may not matter - there is no appeal to a consular
officer's decision, and if he disagrees with you, it would be very
difficult to change his mind even if the letter of the law is on your
side.
As for premium or regular processing: using premium processing would have
the advantage that you can be certain and make plans well in advance of
the April 2004 deadlin.
On Sun, 31 Aug 2003 01:55:25 +0000, vali77 wrote:
> My H1B visa and status (I94) are valid unitil, April,2004. This is my
> first extension and my problem is that before I got my H1B I overstayed
> less than 6 month.
>
> I was warned at US Consulate that for an extension I will need to come
> back in my home country. (no Canada nor Mexic)
>
> I just spoke with my lawyer and he told me that I can get I94 along with
> the approved petition.
>
> Should I apply for an extension as soon as posible (6 months befere
> limit), using normal or premium proccesing ?
>
> I read somewhere that you can't change your status once you overstayed.
> I am trying to extend my status and not to change it.
>
> Where can I find a reference about this law ?
>
> I'm trying to avoid beeing out of status again.
>
> Thanks.
--
Keep American Families united! Support H.R. 539, H.R. 832 and S. 1510
For more information, see http://www.kkeane.com/lobbyspousal-faq.shtml
only extend your H-1B if you have an immaculate track record, immigration
wise. A previous overstay basically means that you are ineligible to
extend status.
The law actually is less clear on this than I would like. The relevant
section in the regulations is 8 CFR 248.1(b). (you can find it on the BCIS
Web site. A link is on my FAQ page). The reason I'm saying it's not clear
is that a literal reading of the regulations seems to suggest that you are
only ineligible of you failed to maintain "the previously accorded
status". One could read this as meaning, only the immediately preceding
status counts.
Legally, this could be good news, although I don't know if it will help
you. You could file the extension and claim the automatic 240 day
extension to continue working. If BCIS approves the extension and sends a
new I-94, you would indeed be clear. If not, you could go to the consulate
and apply for the new H-1B visa. When challenged on the fact that you
overstayed again this time, legally your position would be that you had a
reasonable reason to expect an approval of the extension.
However, in the end it may not matter - there is no appeal to a consular
officer's decision, and if he disagrees with you, it would be very
difficult to change his mind even if the letter of the law is on your
side.
As for premium or regular processing: using premium processing would have
the advantage that you can be certain and make plans well in advance of
the April 2004 deadlin.
On Sun, 31 Aug 2003 01:55:25 +0000, vali77 wrote:
> My H1B visa and status (I94) are valid unitil, April,2004. This is my
> first extension and my problem is that before I got my H1B I overstayed
> less than 6 month.
>
> I was warned at US Consulate that for an extension I will need to come
> back in my home country. (no Canada nor Mexic)
>
> I just spoke with my lawyer and he told me that I can get I94 along with
> the approved petition.
>
> Should I apply for an extension as soon as posible (6 months befere
> limit), using normal or premium proccesing ?
>
> I read somewhere that you can't change your status once you overstayed.
> I am trying to extend my status and not to change it.
>
> Where can I find a reference about this law ?
>
> I'm trying to avoid beeing out of status again.
>
> Thanks.
--
Keep American Families united! Support H.R. 539, H.R. 832 and S. 1510
For more information, see http://www.kkeane.com/lobbyspousal-faq.shtml
