H1 Filed after 1-94 Expiry, H1-B approved but extension of status/stay denied

My H1-B has expired on Sep 09, 2020. My I-94 was valid till Sep 19, 2020. My employer filed my H1-B on Sep 29, 2020. I got H1-B approval for 3 years starting May 24,2021 - Sep 09, 2023. But my extension of stay is denied. Can anyone please help me with the options I have now.

  1. How long can I stay in the US ? (I have received my Approval notice on May 27, 2021)
  2. Will I be able to get back into the US if I step out of the country for my H1-B stamping ?

Your stay after your I-94 expires is counted as unlawful presence unless you filed your H1B extension before the I94 expiry in which case you can work up to 240 days based on receipt of your H1B . However if it is pending beyond 240 days, you can stay legally till your case is adjudicated but cant work after 240 days.
Based on your situation, your stay starting from your I94 expiry till your leave the country may be unlawful as USCIS already denied your stay.
Ideally you should have left before accumulating 180 days of unlawful presence otherwise you could be barred for 3 years from reentering the US.
@anil_am22 , please correct me if I am wrong.

By accruing all these unlawful presence you are putting your self in a tough situation. It depends on the VO but it seems difficult for your to reenter.

1 Like

I have received a notice with my approval saying “This decision may leave the beneficiary without lawful immigration status. If the beneficiary is present in the united states in violation of the law, he or she is required to depart immediately. Remaining in the United states without a lawful status AFTER THE DATE OF THIS DECISION may result in the accrual of unlawful presence”. Doesnt this mean that my 180 days period starts from my notice date ?

If this is what USCIS says then you already started accruing unlawful presence from the approval date of your H1B. You should depart the country asap.

Yes, this notice came along with my approval notice. I am currently in a dilemma whether to leave ASAP or to stay and apply for something because as you have said earlier that I will be in 3 year bar once I step outside the US.

If you keep living unlawfully you are making it difficult for you to reenter the country with H1B stamp. Consult a good attorney for your case and options.

Thank you Kalpesh. I was not aware of my situation till May 27, 2021. It’s not that I know about this illegal status and I am staying. It is just that I don’t know. My employer is still saying that I have 180 days to leave the country from the date of the decision (May 27, 2021) but he is asking me to leave ASAP. Now my concern is not about going back (I can leave right away), it is about whether or not I will be able to return to the US. Someone was saying that I should stay here and apply for the Nunc Pro Tunc petition and wait for the response. I am currently in that confusion between going to India for stamping or applying Nunc pro tunc.

We are supposed to know at least two things at the minimum in the country we live as non-immigrants, Tax and immigration laws otherwise you may end up in trouble.

Don’t rely on someone’s advice, please hire a good attorney like Reddy & Neemann (https://www.rnlawgroup.com/) or Rajiv Khanna (https://www.immigration.com/) asap and follow what they suggest. Note that I am not being paid any referrals from these attorneys nor do I work for them :slight_smile: , I just know they are good in their profession.

Thank you for your information and suggestions.