TheFarSide

Hi!

I am waiting for my H1-B extension to be approved but the delays are such that my original H1-B has expired (despite being filed 6 months before!). I know I have 240 days before I become out of status and I can continue working in the meantime.

However...., my wife must travel back to the UK next week for two weeks but in leaving the US I believe she is deemed to have abandoned her extension and thus cannot return on an H4. The extension will not be approved by the time she is due to fly back.

What is the best way for my wife to return to the US? She has B1/B2 visa that she obtained when we first came to the US (before we were married) and it is still valid. She could also try visa waiver. Will this be permitted as she doesn't have a return flight to the UK booked?

Has anyone else been in the same situation? Do you have any advice?

Thanks

Sylvia Ottemoeller

"TheFarSide" wrote in message
news:431302.1033529267@britishexpats-
.com...

    > I am waiting for my H1-B extension to be approved but the delays are
    > such that my original H1-B has expired (despite being filed 6 months
    > before!). I know I have 240 days before I become out of status and I can
    > continue working in the meantime.
    > However...., my wife must travel back to the UK next week for two weeks
    > but in leaving the US I believe she is deemed to have abandoned her
    > extension and thus cannot return on an H4. The extension will not be
    > approved by the time she is due to fly back.
    > What is the best way for my wife to return to the US? She has B1/B2 visa
    > that she obtained when we first came to the US (before we were married)
    > and it is still valid. She could also try visa waiver. Will this be
    > permitted as she doesn't have a return flight to the UK booked?
    > Has anyone else been in the same situation? Do you have any advice?

Your wife has these choices: cancel her trip; leave the U.S. but remain in
the U.K. until the H-4 extension has been approved, even if it takes a long
time; you pay the $1000 premium processing fee so that the INS will approve
the H-1B and H-4 petitions within 15 days, and your wife can make her trip
as planned; or she can try to enter the U.S. in B-2 or visa waiver.

I think the last is a poor choice. Her true purpose, to join an H-1B
holder, would not match the status she would use to enter the U.S. In the
current climate, I would not do it.

tmc333don

I have a question about what you had to say about waiting for your H1B extension. I know of someone that is waiting for his extension but his visa has now expired but is worried that he is going to be in trouble. You said something about 240 days before you become out of status. Is that correct? Where can I find more information to put his mind at ease? He thinks INS is going to come looking for him since he did not leave the country when his visa expired even though the paper work has been started to extend his visa. Please help with any information if you can.

Thanks

Stuart Brook

tmc333don wrote:
    > Originally posted by TheFarSide:
    > > Hi!
    > >
    > > I am waiting for my H1-B extension to be approved but the delays are
    > > such that my original H1-B has expired (despite being filed 6 months
    > > before!). I know I have 240 days before I become out of status and I
    > > can continue working in the meantime.
    > >
    > > However...., my wife must travel back to the UK next week for two
    > > weeks but in leaving the US I believe she is deemed to have abandoned
    > > her extension and thus cannot return on an H4. The extension will not
    > > be approved by the time she is due to fly back.
    > >
    > > What is the best way for my wife to return to the US? She has B1/B2
    > > visa that she obtained when we first came to the US (before we were
    > > married) and it is still valid. She could also try visa waiver.
    > > Will this be permitted as she doesn't have a return flight to the
    > > UK booked?
    > >
    > > Has anyone else been in the same situation? Do you have any advice?
    > >
    > > Thanks
    > I have a question about what you had to say about waiting for your H1B
    > extension. I know of someone that is waiting for his extension but
    > his visa has now expired but is worried that he is going to be in
    > trouble. You said something about 240 days before you become out of
    > status. Is that correct? Where can I find more information to put
    > his mind at ease? He thinks INS is going to come looking for him
    > since he did not leave the country when his visa expired even though
    > the paper work has been started to extend his visa. Please help with
    > any information if you can.
    > Thanks

He is out of status now ... but he is legally present. Now is that
complicated double talk or what!

Providing his employer made a timely, non-frivolous application to
extend his H1B, he is permitted to remain and continue working for up to
240 days, or a decision is made, whichever comes first.

Stuart

Sylvia Ottemoeller

"tmc333don" wrote in message
news:436166.1034022753@britishexpats-
.com...

    > Originally posted by TheFarSide:

    > > I am waiting for my H1-B extension to be approved but the delays are
    > > such that my original H1-B has expired (despite being filed 6 months
    > > before!). I know I have 240 days before I become out of status and I
    > > can continue working in the meantime.
    > >
    > > However...., my wife must travel back to the UK next week for two
    > > weeks but in leaving the US I believe she is deemed to have abandoned
    > > her extension and thus cannot return on an H4. The extension will not
    > > be approved by the time she is due to fly back.
    > >
    > > What is the best way for my wife to return to the US? She has B1/B2
    > > visa that she obtained when we first came to the US (before we were
    > > married) and it is still valid. She could also try visa waiver.
    > > Will this be permitted as she doesn't have a return flight to the
    > > UK booked?
    > >
    > > Has anyone else been in the same situation? Do you have any advice?

    > I have a question about what you had to say about waiting for your H1B
    > extension. I know of someone that is waiting for his extension but
    > his visa has now expired but is worried that he is going to be in
    > trouble. You said something about 240 days before you become out of
    > status. Is that correct? Where can I find more information to put
    > his mind at ease? He thinks INS is going to come looking for him
    > since he did not leave the country when his visa expired even though
    > the paper work has been started to extend his visa. Please help with
    > any information if you can.

If an employer has submitted a timely-filed application for extension of
H-1B status, the H-1B employee is authorized to "continue employment with
the same employer for a period not to exceed 240 days beginning on the date
of the expiration of the authorized period of stay." Here is the regulatory
authority, available through
http://www.ins.usdoj.gov/-
graphics/lawsregs/8cfr.htm.



At 8 CFR section 274a.12(b), INS regulations state:

_____________



(b) Aliens authorized for employment with a specific employer incident to
status. The following classes of nonimmigrant aliens are authorized to be
employed in the United States by the specific employer and subject to the
restrictions described in the section(s) of this chapter indicated as a
condition of their admission in, or subsequent change to, such
classification. An alien in one of these classes is not issued an
employment authorization document by the Service.

_____________



At 8 CFR section 274a.12(b)(20), the 20th class is described as follows:

_____________



(20) A nonimmigrant alien within the class of aliens described in paragraphs
(b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14),
(b)(3), and (b)(19) of this section whose status has expired but who has
filed a timely application for an extension of such stay pursuant to
sections 214.2 or 214.6 of this chapter. These aliens are authorized to
continue employment with the same employer for a period not to exceed 240
days beginning on the date of the expiration of the authorized period of
stay. Such authorization shall be subject to any conditions and limitations
noted on the initial authorization. However, if the district director or
service center director adjudicates the application prior to the expiration
of this 240 days period and denies the application for extension of stay,
the employment authorization under this paragraph shall automatically
terminate upon notification of the denial decision.

___________



Here is a table summarizing the classes above:



(b)(4) A-3



(b)(5) E-1 and E-2



(b)(6) G-5



(b)(7) H-1, H-2A, H-2B, and H-3



(b)(8) I



(b)(9) J-1



(b)(10) L-1



(b)(11) O-1 and O-2



(b)(12) P-1, P-2, and P-3



(b)(13) R



(b)(14) TN