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H1B expiry date in Passport, I797 and I94 is 7/21/14. My company attorney called me today and said, my max out date is 09/31/13.

Dallas, TX |

My H1B extension was approved last year till 7/21/14 and received my I-797. After which I got new H1B visa stamped on my passport, & new I-94 when I reentered USA all valid till 7/21/14. I got an email from my company attorney that my max out date is sep/31/2013. He was the one who filed for my extension till 7/21/14 and got it approved. In his email he stated that my first H1B was issued on 10/1/07 (which is correct). My question is I have stamped visa, I797 and I94 (all legal documents) showing that my current H1B is valid till 7/21/14, in that case should I have to consider my H1B expiry date to be sep/31/13 or july/21/2014. My company is planning to file LC on Aug/1/13, if sep/31/13 is my h1b expiry date, I do not have enough time to get my LC and I-140 approved. what are my options ?

Attorney Answers 3

Posted

In my opinion a person with a valid I-94 is in status until that date the I-94 expires. Sometime DHS issues forms I-94 which are valid to dates which are beyond the 6 year maximum person someone can be in H-1B status. In my opinion that doesn't change the fact that one's I-94 is valid to the date written on it unless and until the government revokes it or otherwise makes a formal finding that you are not in valid H-1B status. Based upon the facts stated you may wish to obtain a second opinion regarding your status, and if that opinion is that you may work to 7/21/14, you might be able to use it to persuade your company to continue to allow you to be employed until 7/21/14, by which time there is a good chance you will have an approved I-94. Also, even by its own terms your attorney's reported calculations seem incorrect since obviously you have been outside the U.S. for at least some period of time and therefore your 6 years in the U.S. in H-1B status will apparently expire on some date later than 9/30/31 after the days you spent outside the U.S. are "recaptured" (also there are only 30 days in September).

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Michael E. Piston

Michael E. Piston

Posted

Sorry, when I wrote "by which time there is a good chance you will have an approved I-94 " I meant "by which time there is a good chance you will have an approved I-140 "

Asker

Posted

Thank you for your immediate response. I should be able to push my H1b expiry date to March/1/2014 from Sep/30/2013 if I recapture the time that I I spent outside USA (5 months). In my PERM process, we have completed wage determination, currently PERM recruitment is under process. My attorney is planning to file LC on Aug/1/2013. I am not sure why he will need 2 more months to file LC if PERM recruitment requires only 30 days. Looking from Aug/1/2013 to March/1/2014, I have 7 months, is t possible to get PERM certified and I140 approved within this time frame? what are my options if I did not get I-140 approved before march/1/2014. Again Thank you very much for all your responses and help.

Michael E. Piston

Michael E. Piston

Posted

Its possible, by current processing times, if you don't get an audit and file your I-140 premium processing, to get your I-140 approved by 3/1/14. But even if it isn't, again, in my opinion you are in valid H-1B status until your I-94 expires, and I don't see any reason why you can't continue to be employed until that date.

Asker

Posted

Thank you very much for your immediate response sir. I am hoping that my case go unaudited and do premium processing for I140. Though my I94 is valid till July/21/2014, if my six year term on h1b is completed by march/1/2014 and if do not have I140 approved will I still be considered as legal immigrant? Again thank you very much for your time and effort sir.

Michael E. Piston

Michael E. Piston

Posted

In my opinion you are a legal immigrant as long as you have a valid form I-94 (assuming, of course, that you do not violate the terms of your status).

Posted

Talk to that attorney in-person ... preferably face-to-face ... either live or via Skype.

He/she has the answers ... we don't.

Sorry.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

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Asker

Posted

Thank you very much for your response sir.

Posted

Call the lawyer and ask for a review. The date on the I-94 and the extension that was filed to get the new date may have included time that was recaptured or not previously spent in the US. The company attorney may not have calculated the time properly when he sent the email.

The answer provided here is general in nature and does not take into account other factors that may need to be reviewed for a more precise answer. You should consult with an immigration attorney before taking any action. The answer here is not intended to create an attorney-client relationship.

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Asker

Posted

Thank you for your immediate response. From Oct/1/2007 – Jun/27/2008, I was working in USA. I went to India on Jun/27/2008 and reentered USA on July/22/2008 with a valid h1B visa stamped on my passport. In my I-797 and H1B visa stamped on my passport, the current H1b visa expiration date is July/21/2014. I guess my attorney has applied for my viss extension till July/21/2014 thinking that July/22/2008 (the day I reentered USA) as my first day in H1B. He assumed that I was in India from Oct/1/2007 to July/21/2008. I am not sure if I should take the date (july/21/2014) in my I-94 or I-797 and Visa on my passport as my actual expiry date of h1b or the actual end 6 year term which is March/1/2014 (including recapture time) as my last date of h1b visa. Again Thank you very much for your response and suggestions.

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