I was on H-1B Visa, I am out of status now, How can I apply for extension?

I came to US on a H-1B Visa, My visa expired on FEb 21 st 2009, My employer is not willing to apply for sponsorship, How can I apply for extension?

Alabama -

Attorney Answers (2)

Charles H Kuck

Charles H Kuck

Immigration Attorney
Answered

We need to know if your h-1B I-94 card is still valid. If not, you are out of status and cannot fix your case in the U.S.. You will have to leave before you accumulate more than 180 days of overstay time from your i-94 card expiration date. If you have a current i-94 card, you will need to find another employer to be your H-1B employer.

Best regards,
Charles



Charles H. Kuck
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Stuart Jonas Reich

Stuart Jonas Reich

Immigration Attorney
Answered

I agree with my colleague, Chuck Kuck - just wanted to expand a bit on a couple of items: what often confuses us lawyers is when clients or potential clients say that their "visa expired" - we don't know whether you mean the stamp laminated into the passport, or the I-94 card (whether given when you entered or as part of the approval notice for an extension or change of status.

The official looking laminated stamp actually doesn't matter quite as much - you should look at it only as a ticket to enter the U.S. from outside the country. The I-94 card is actually what controls length of status here, unless overruled by a violation of status or a decision from an immigration officer or judge.

If it was your I-94 that expired back in February, with your employer being unwilling to file to extend your H-1B status, this is a big problem - you are already 180 days past February 21st, and leaving now makes you subject to a three-year bar to ccoming bacck. Yet, there is no way - as Chuck's post mentioned - for you to correct your H-1B status by extension, employer-change, or by switching to another nonimmigrant status while in the U.S. without first leavving (and becoming subject to the three-year bar.

What's worse, if you stay a full year past February 21 and then leave, you are subject to a ten-year bar to coming back!

You really need to speak with a lawyer to see what options might be available to you.

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