h1b overstayed 15days, bcaz PERM audit

[thota006 0]

Hi All,

H1B total 6 years with recapture days completed on 4/14/2016. but my I-94 expires Oct 21 2016, PERM was filed sep 2015 & it got Audit few weeks back.

Tomorrow I'm filing change of Status to F1 for Masters

since i over stayed for like 15days (thought i had till 4/26/2016), will it effect my PERM or Change of Status application ?

any help is appreciated

Thanks,

Kris

[piff 46]

if you have overstayed your status in the US even by 1 min, you are therefore ineligible for any further non-immigrant benefits (AOS, change of status, etc). You can try to explain it to USCIS, but since IRS and USCIS are not the same agency, I doubt they will take it as an acceptable reason. There is a reason: by USCIS mistake, but it just doesn't look like it would fall under your category. But you never know...

[thota006 0]

true, but i filed PERM & also H1 extension based on that & also my i-94 doesnt expire till Oct .. so considering this, i should not be out of status now right.

(ii) Bar to Change of Status and Extension of Stay as a consequence of Overstaying a Visa
Persons who remain in the US after their authorized period of stay are not able to extend their stay in the US or change their status to another nonimmigrant status. In most cases they are also barred from adjusting their status from that of a nonimmigrant to that of an immigrant.

However, the USCIS stated that as long as a foreign national files for an Extension of Stay or Change of Status or Adjustment of Status before the period of authorized stay expires, the foreign national will be considered to be maintaining status until a decision is made on the application or petition, even if the decision is after the date on the I-94 expires.

This falls in my category right?

thanks,

Kris

[HollywoodNorth 22]

I'm editing my message since I"m not 100% sure.

But your I94 would determine you status so you would still be ok to change status until the PERM completes and you file I140.

Ask your employer and their immigration attorney.

Edited April 25, 2016 by HollywoodNorth

[thota006 0]

sure, appreciate the response .. i will ask my employer, but i thought i should check with valuable resources here too

only question i have is 6years cap completed on 17th April 2016 .. but i-94 till 21 OCT 2016 .. this got it some confusions, but i will ask my employer attorney on that.

*** once i went to mexico while on H1 & i never claimed that days, because when i entered mexico they didnt stamp in my passport when i entered, i got stamp only when i came back to USA. so technically they dont have a record of how many days i was there in mexico*** i think i was there atleast 3 weeks

can this be claimed for 3weeks?

Thanks again,

kris

[newacct 688]

You mean your H1b petition expired in April 2016? It is weird then that they would give you an I-94 until October. If you are out of status, whether USCIS accepts a Change of Status application is at their discretion. It shouldn't affect the immigration process since that does not depend on status.

To recapture days out of the US as H1b days you would have to apply for an extension of H1b status before your status expired; it doesn't just extend your status automatically.

Edited April 26, 2016 by newacct

[thota006 0]

I have valid VISA stamped till OCT 2016 & i-94 also till OCT .. but my 6year CAP completed few days back.

*** if i add the days that i went to mexico that will push my 6year limit to 5/5/2016 .. but in passport i dont have mexico went/came stamps .. but in i-94 travel history, i see arrived from mexico details only, not departed to mexico details, weird i know .. but thats what is there

Thanks,

kris

[newacct 688]

The visa is only for entry and when it expires is irrelevant. On entry they should have admitted you for the duration of your H1b petition. Look on the I-797 approval notice for your H1b petition; what date does it say it expires? If the admitted you for a different date, then they made a mistake.

[thota006 0]

you are right & seems like they were right too .. recent US entry is Aug 2014 with i-797 valid till Oct 2016 with employer A .. After i changed to employer B which i-797 expired in march & employer C filed for transfer/extension in March(in process with uscis).

my only question would be, can i stay till Oct or am i already out of status even though my i-94 expires in OCT 2016

thanks,

Kris

[coolgt 0]

You are authorize to stay in the US until USCIS gives you a decision on the pending case.

You are good to work for employer C until USCIS makes the decision.

[thota006 0]

Thanks so very much & i really hope they approve my PERM soon .. i was afraid since i filed PERM less than 365 days, it might be a problem, but my i-94 expires OCT, thats good i guess, even though my 6year cap expired, will let you know once i hear something from my employers attorney.

Thanks,

kris

[thota006 0]

Luckily my PERM was approved yesterday.

filed September 2015, audited in March 2016, replied Audit in March 2016, Certified/Approved in May 2016.

Mean while i applied to university & continuing my Masters, once my i-140 gets approved, i will shift back to H1.

Thanks All for your support

[TBoneTX 45,850]

Thanks for the update with the positive news.