yalinu

Hi Everyone,

I have an H-1B visa stamp and I-797 valid until August 2006.
But due to the expiration date of my passport which is at the end of July 2004 the official at the passport gate in New York stamped my I-94 card until the expiration of my passport. He told me that I would have to extend my passport (Which I have already done) and exit and re-enter the US to get a new I-94 card so I will not be out of status after the I-94 expires.
Now I have to get a visa for Canada and go there and back.
Also I have searched the web and when visiting Canada or Mexico they do not remove the I-94 card and if you return within the 30 day period then you basically can enter with the old I-94.

What can I do in this situation?

Should I inform the official to remove the I-94 when I exit the US?

Also it would be easier not to take the trip and all the expense, so is there a way of getting this done in the US?

Would there be a difference in flying and driving to Canada, as the flight ticket attendant removes the I-94 at the airport. Meanwhile an immigration officer or whatever their name would be would remove the I-94 card at the border.

Thanks in advance for any help.

Yalin

crg

You could file an I-539 by mail to extend your status prior to the expiration. As long as the extension request is timely, you are in status until you get the results.

If you overstay by one day then your visa is canceled, so be careful. If you go to Canada they can take the old I-94 or not. Even if they don't take it, request to go to the immigration secondary area at the port and explain to them that your passport has been extended and that you need a new I-94. They should issue you a new I-94 and charge you $6 if you do it at a landborder. You may want to bring evidence that you're still employed at the H1B company.

Manish

crg

"-=--- read before posting, he does not need to get his status Extended he needs only I-94 to be corrected, why he needs I-539?Form I-539 is used for H4 extension or for Change of status
he needs to fill up I-102 and can get his I-94 corrected."

It was not a mistake on the I-94. His I-94 was not issued in error, so it's not a correction. It was limited to the validity of his passport pursuant to section 212(a)(7)(B)(i)(I). An I-539 can extend a stay in such situations.

Filing an I-102 would give him an I-94 that is identical to the one he has now! You're telling him to flush $155 down the toilet!

"----- VISA is not cancelled it is STATUS that becomes invalid if you stay more than I-94 validity. Try to understand diffrence between Visa stamp and Status"

I think I know the difference between a visa, status, and an I-94 arrival departure form. The visa becomes canceled due to any overstay pursuant to section 222(g) of the INA. You may need to familiarize yourself with the following law:

<<<SNIP>>>
222(g)2/(1) In the case of an alien who has been admitted on the basis of a nonimmigrant visa and remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay.
<<<SNIP>>>

"------- the above has to be done when he enters US AGAIN and he needs new I-94 from US immigration at Border"

Of course you have to be entering the US AGAIN. However, even if you still have the old I-94, the officer can take it from you and issue you a new I-94. Nothing in the law prevents them from doing so. It's better to turn it in on the way out, but it's not the end of the world if you can't get the Canadians to take it, or the airline neglects to remove it.

yalinu

Thanks!!! This help alot.

I'll try filing form I-539.

You said if filed in a timely manner. What would be the limitations, or time period I have to file it.

Thanks,

Yalin

yalinu

Thanks for all the info. I came to this forum which helped me every issue and got replies quicker than our attorneys.

I just got a reply from them her it is:

>Yalin,
>
>The I-539 is used to extend or change status. Your H-1B status >is current and does not need extending. Moreover, you are not >eligible to file this form; only your employer can extend your >status through form I-129. If your status was expiring, the >employer filed Form I-129 and it was approved by July 30 (which >would require expedited processing at this point), then yes, you >would receive a replacement form I-94.
>
>Regards,
>XXXX

I just wanted to get everyone's opinion.

Thanks.

Yalin

crg

I have a problem with that answer. Email her back and ask her how you get a valid I-94. Maybe she thinks your petition has an I-94 attached to the bottom.

The petition is valid, but nonimmigrants always need a valid I-94 unless they are pending a change of status, extension of status, or adjustment of startus.

J. J. Farrell

Manish <member269@british_expats.com> wrote in message news:<[email protected]>...
    > Originally posted by crg14624
    > > You could file an I-539
    > > by mail to extend your status prior to the expiration.
    > read before posting

Check your facts before posting.

    > he does not need to get his status Extended he needs
    > only I-94 to be corrected

There's nothing wrong with his I-94, nothing to correct
about it. He goes out of status at the end of July when
his I-94 expires. He needs either to leave the USA and
re-enter to get a new period in status, or he needs to
extend his current status period beyond the expiry date
of his current I-94.

    > why he needs I-539?

To extend his status, making him legal beyond the end
of July without needing to leave and re-enter the USA.
I'm not sure if I-539 is appropriate in this particular
case (though logically it should be) or whether an I-129
is needed. According to the I-539 it can't be used to
extend an H-1B, but I'm fairly sure that the instructions
on the form are wrong - they weren't thinking about this
sort of case.

    > Form I-539 is used for H4 extension or for Change of status

It's used for extension of many non-immigrant statuses.

    > he needs to fill up I-102 and can get his I-94 corrected.

What do you believe needs correcting about his I-94?

    > he can go to Canada or Mexico and when he
    > reenters he will get New I-94 or get I-94 corrected/ extended

As long as he surrenders his I-94 he'll get a new one.
If he doesn't get a new one his current one won't be
"corrected" since there is nothing incorrect about it.

    > > If you overstay by one day then your visa is canceled,
    > so be careful.
    > ----- VISA is not cancelled it is STATUS
    > that becomes invalid if you stay more than I-94 validity. Try to
    > understand diffrence between Visa stamp and Status

Nonsense. Try to understand the law. He goes out of
status when he overstays his I-94, and his visa is
automatically cancelled at the same time under 222(g).

Sylvia Ottemoeller

"J. J. Farrell" <[email protected]> wrote in message
news:[email protected]...

    > Manish <member269@british_expats.com> wrote in message
news:<[email protected]>...

    > > Originally posted by crg14624

    > > > You could file an I-539
    > > > by mail to extend your status prior to the expiration.

    > > read before posting

    > Check your facts before posting.

    > > he does not need to get his status Extended he needs
    > > only I-94 to be corrected
    > There's nothing wrong with his I-94, nothing to correct
    > about it. He goes out of status at the end of July when
    > his I-94 expires. He needs either to leave the USA and
    > re-enter to get a new period in status, or he needs to
    > extend his current status period beyond the expiry date
    > of his current I-94.
    > > why he needs I-539?
    > To extend his status, making him legal beyond the end
    > of July without needing to leave and re-enter the USA.
    > I'm not sure if I-539 is appropriate in this particular
    > case (though logically it should be) or whether an I-129
    > is needed.

The I-129 must be filed to extend H-1B status, even if there already exists
an approved H-1B petition for the same period of time. The attorney's
answer was correct.

According to the I-539 it can't be used to
    > extend an H-1B, but I'm fairly sure that the instructions
    > on the form are wrong - they weren't thinking about this
    > sort of case.

The instructions are not wrong in this case.

    > > Form I-539 is used for H4 extension or for Change of status
    > It's used for extension of many non-immigrant statuses.
    > > he needs to fill up I-102 and can get his I-94 corrected.

I-102 cannot be used to obtain any change in an I-94.

    > What do you believe needs correcting about his I-94?
    > > he can go to Canada or Mexico and when he
    > > reenters he will get New I-94 or get I-94 corrected/ extended
    > As long as he surrenders his I-94 he'll get a new one.
    > If he doesn't get a new one his current one won't be
    > "corrected" since there is nothing incorrect about it.
    > > > If you overstay by one day then your visa is canceled,
    > > so be careful.

    > > ----- VISA is not cancelled it is STATUS
    > > that becomes invalid if you stay more than I-94 validity. Try to
    > > understand diffrence between Visa stamp and Status

Manish, check out 222g. The visa (stamp) is indeed cancelled.

    > Nonsense. Try to understand the law. He goes out of
    > status when he overstays his I-94, and his visa is
    > automatically cancelled at the same time under 222(g).

J.J. is correct. If a person overstays his status (as indicated by a date
certain on an I-94), then the **visa** is cancelled.

crg

JJ Farrell:

Thanks for backing me up on this one. If this guy had followed Manish's advice and filed an I-102 and his status had expired, he could find himself with a 3 or 10 year bar.

crg

Sylvia,
This sounds like a real mess. I think a visit to the Canadian side of Niagara Falls is the best option. It's ridiculous to file a new I-129 for something like this when all he needs is the rest of the time on an existing approved petition.

From what that attorney told this person, it might be tough to convince the company to file an I-129 on his behalf.

J. J. Farrell

"Sylvia Ottemoeller" <[email protected]> wrote in message
news:[email protected]...
    > "J. J. Farrell" <[email protected]> wrote in message
    > news:[email protected]...
    > > > why he needs I-539?
    > >
    > > To extend his status, making him legal beyond the end
    > > of July without needing to leave and re-enter the USA.
    > > I'm not sure if I-539 is appropriate in this particular
    > > case (though logically it should be) or whether an I-129
    > > is needed.
    > The I-129 must be filed to extend H-1B status, even if there already
exists
    > an approved H-1B petition for the same period of time.
    > > According to the I-539 it can't be used to
    > > extend an H-1B, but I'm fairly sure that the instructions
    > > on the form are wrong - they weren't thinking about this
    > > sort of case.
    > The instructions are not wrong in this case.

Thanks for the correction, Sylvia. This seems a bit silly, but
that's par for the course with a lot of immigration law ...

yalinu

Wow! Thanks so much for the great support.

I also checked it out and any H class visa can only be extended with filing a new I-129. So that's pretty far out in terms of expense and time plus the suspense!!

So I have basically booked a ticket and hotel to Canada all refundable just in case I get denied for a visa at the Canadian Embassy!!

JJ, Sylvia, crg14624, you've been a great help!!

Thanks,

Yalin