H1B amendment approved with past date, i94 already expired

Due to H1 amendment, my I-94 date was reduced last year from Oct 2020 to Jun 30, 2019. However the amendment was not approved till Nov 1st 2019. On receipt of the approved amendment with back date, my employer filed for H1 extension however that got denied on 20th March. The attorneys filed another H1 request in Nunc pro Tunc for which they are yet to get the receipt number. I also have an amendment request that was filed in February (after H1 extension) and its still in progress.

Question: Will I be considered out of status since June 30, 2019 or Nov 1st 2019 or March 20, 2020?

According to my employer attorney it will be from Nov 1st 2019 and they are asking me to leave the country before I hit the 180 days or else I will be barred to enter US for at least 3 years. They are suggesting I should not apply B2 since they have already filed H1 in Nunc Pro Tunc. Is this the correct strategy?

The strategy looks good. Usually, the date that USCIS considers is the date that USCIS gave the last decision.

Thanks Anil!
Just to confirm, you think USCIS should only consider my unlawful presence from Mar 20 (day H1 extension got denied) and not from Nov 1, 2019 when they issued the back dated I-94?
My biggest worry is the 180 days (April 29, 2020) that I am approaching based on Nov 1 date. If that’s not the case then this gives me some breathing room. I do plan to travel back to India as soon as the borders open but so far not seeing any flights until May 1.
Also can my amendment that’s still in review be of any help here? Thanks!

It is always better to be conservative in case you have multiple applications pending overlapping each other.

I suggest to go by what your attorney is suggesting.

my H1B amendment was approved on April 8th but approved backdated till March 10, with I94 expiry of March 20. I cannot travel now to India. So when does my unlawful presence starts?

Hi @User099

Your ‘Unlawful presence’ will start from Mar 21.

Thanks for the response. Can I file extension in this scenario, and continue to stay.
If my extension is rejected, will the unlawful presence be from I94 expiry or the date of denial?

Hi @User099

You can file a NPT application and continue to stay. if it is approved, all the time will be made legal.
If it is denied, then all the time you have spent after i94 expiry will be illegal.

Is there any format for i539 with NPT or just cover letter with explanation is sufficient ?

You will need to request Extension start date from past (when your i94 expired). You will also need to include proofs to support your NPT request.

1 Like

Thanks for answering. It is change of status request after 94 expiry. Is there specific way to mention NPT or cover letter will suffice? USICS will understand it’s NPT? Or I have to mention explicitly to consider it as NPT.

Hi @user2020
I am not sure if your situation is same as @User099 or you are one and same person with different ID.

You cannot file COS application with back date as your i94 has already expired.

Thanks for your Time Anil. No I am different user.

Hi @mrtz,

I’m in the same situation. Did you just filed NPT H1B alone and waiting here? Did you converted to B2? Please let me know, what did you do?


Hi @user099 let me know, what did you do? Just applied for NPT H1B and waiting?

1 Like

Hi @muru20,
Yes, that’s correct. My attorney suggested to stay and work based on my original approved H1B. No B2 was filed.

Thanks for your update.

  1. You are working without approval of NPT Petition and you haven’t moved out of USA country?
  2. so you are working based on earlier H1B extension which has still Oct 2020?
  3. NPT petition H1B extension is still in progress?
  4. Are they considering you as lawful presence based on old H1B?