AOS interview I 94 issue

[san3297]

I received a interview for my AOS case. I am not sure of reason but think i may have a I 94 issue. Please can you let me know if this is an issue and how should i prepare before interview if it is so.

First H1b Approval (Oct 2 2006 – Nov 1 2009).
Second H1b Approval (Oct 2 2009 – Nov 1 2012) ( I 94 No:ABC).
Travelled to India Aug 2009 for 2 weeks.
While coming back in August Showed both 797s at POE but I 94 Given Till Nov 10 2009. (I 94 No: XYZ).
Filled I 485 on December 2011 with the I 94 No:ABC from my second H1 approval Document.
Currently received a status update on my I 485 for interview.


Based on the above situation am i Out of status. If so can i correct my I 94. I am getting conflicting answers from different sources.

[goomail]

You should have surrendered all I94s when you left US in Aug 2009. The new I94 received at POE when you returned, determines your duration of stay. Since it was only till Nov 10 2009, you should have applied for extension of stay. It seems that you are out of status. This is my personal opinion, I would highly recommend to consult an attorney to handle the situation.

[sunny1000]

I received a interview for my AOS case. I am not sure of reason but think i may have a I 94 issue. Please can you let me know if this is an issue and how should i prepare before interview if it is so.

First H1b Approval (Oct 2 2006 – Nov 1 2009).
Second H1b Approval (Oct 2 2009 – Nov 1 2012) ( I 94 No:ABC).
Travelled to India Aug 2009 for 2 weeks.
While coming back in August Showed both 797s at POE but I 94 Given Till Nov 10 2009. (I 94 No: XYZ).
Filled I 485 on December 2011 with the I 94 No:ABC from my second H1 approval Document.
Currently received a status update on my I 485 for interview.


Based on the above situation am i Out of status. If so can i correct my I 94. I am getting conflicting answers from different sources.

You are out of status. Please contact a GOOD attorney (someone like the murthy law firm) to assist and get this rectified.

[skal]

I received a interview for my AOS case. I am not sure of reason but think i may have a I 94 issue. Please can you let me know if this is an issue and how should i prepare before interview if it is so.

First H1b Approval (Oct 2 2006 – Nov 1 2009).
Second H1b Approval (Oct 2 2009 – Nov 1 2012) ( I 94 No:ABC).
Travelled to India Aug 2009 for 2 weeks.
While coming back in August Showed both 797s at POE but I 94 Given Till Nov 10 2009. (I 94 No: XYZ).
Filled I 485 on December 2011 with the I 94 No:ABC from my second H1 approval Document.
Currently received a status update on my I 485 for interview.


Based on the above situation am i Out of status. If so can i correct my I 94. I am getting conflicting answers from different sources.

Did you file 2nd H1b through the same Employer in 2009 and did you travel to India in Aug'09 when your extension with USCIS is pending!
Did you receive 2nd H1b approval with the same I-94 of 1st entry to US on H1b?
When you filed your I-485 either Employer/Attorney would have noticed if there is any issue! I would recommend as other forum members pointed to approach a Immigration Attorney with your complete case history to get this taken care ASAP.

[san3297]

I had two approvals in hand and was under impression that my future 797 is not even started so i can use that I 94 after the I 94 given at POE expires.

I wish my attorney updated me when i filled my I 485. He overlooked it, now when i contacted him back he says go to interview and see what they say. Should have filled my I 485 with a different attorney.

I am in contact with murthy firm and hired them all way till interivew hopefully this will not create a bigger issue.

[sunny1000]

I had two approvals in hand and was under impression that my future 797 is not even started so i can use that I 94 after the I 94 given at POE expires.

I wish my attorney updated me when i filled my I 485. He overlooked it, now when i contacted him back he says go to interview and see what they say. Should have filled my I 485 with a different attorney.

I am in contact with murthy firm and hired them all way till interivew hopefully this will not create a bigger issue.

Good choice. See if you can take the attorney with you to the interview. Please don't listen to your current lawyer by taking a chance with your interview to "see what they say".

Wish you luck.

[san3297]

I am taking them with me to the interview. Sunny i have a question as a senior member around here may be you can answer me. I posted this issue back in 2009. Can you please look at this thread and see the reply posted by attorney back in 2009. Do you still think it holds true.

http://immigrationvoice.org/forum/forum106-non-immigrant-visa/479989-i-94-date-issue-at-poe.html

[sunny1000]

In my opinion (just mine and it is not a legal statement), I-797 is valid but, the I-94 attached to it is invalid as the I-94 given to you at the airport overrode it (last action rule). Your status in this country is governed by the date on the I-94.

So, the approach should been that you should have left the country (to say, canada) and have them process the new I-797 in Nov 2009 and should have gotten a new I-94 (or) you should have gotten a new stamp with your new I-797 when you entered in the first place and that would have solved this issue.

Now, since the above steps did not take place, you are indeed out-of-status. The lawyer from Murthy should be able to advise you on how to fix this legally.

Again, this is all my interpretation of the law based on my readings on the internet. Please take it with a grain of salt.

Good luck with your interview. Hopefully, you will be a Permanent Resident soon with all this behind you. God bless.

[san3297]

Unfortanetly most attorneys are saying the same, those two were the course of actions which i should have done back in 2009. But i cant go back and i should have did more home work then trusting the OK post by attorney back then.

Attorney from murthy firm sent a request for correction to POE but they said they cant do it, and replied what ever they did was correct. So murthy firm is planning to show some supporting document. They are the only last ray of hope and hoping they will get me through it. My 6th year H1 will also be done by Nov, so if interview does not go well seems i will not have any options. It sucks but i am resposible for my negligence.

[hrpatel34]

san3297 let us know your interview result. Wish you best of luck.

[krishmunn]

Thers is something called Nunc Pro Tunc . Probably Murthy will use that to correct this on a back date. Once you are all set report your current lawyer to Bar and AILA

[xyz0011]

I cannot understand how he is out of status. Suppose he came here with a F1 visa with some expiry date and later got H1B approved with a new I-94 attached with the I-797 with a date past the previous I-94 attached to his passport when he entered with F1. Will that mean he is out of status? I don't think so. All I-94 are valid Duration Till Status. Since his two H1B are overlapping, there is no lack of status. Please educate me if I am wrong.

[xyz0011]

Please see if this is helpful:

MurthyDotCom : U.S. Immigration Law (http://www.murthy.com/print/n_cosapp_P.html)

[san3297]

Please see if this is helpful:

MurthyDotCom : U.S. Immigration Law (http://www.murthy.com/print/n_cosapp_P.html)

This is the exactly the way murthy firm is planning to defend my case during interview. What it seems is, there is a clear law in terms of opt and h1 in which case I 94 is valid. But if you are on h1 and you have a valid future start date h1 there is no particular law which states that Iam in a valid status. Murthy firm also confirmed the same they said, I will be fine irrespective of whether my I 94 is corrected or not. But they are the only one who are confident that aim in status. I contacted 4 to 5 different attorneys they are of opinion I may have status issue. Hopefully they can understand my situation as I never intended to do this.

[sunny1000]

This is the exactly the way murthy firm is planning to defend my case during interview. What it seems is, there is a clear law in terms of opt and h1 in which case I 94 is valid. But if you are on h1 and you have a valid future start date h1 there is no particular law which states that Iam in a valid status. Murthy firm also confirmed the same they said, I will be fine irrespective of whether my I 94 is corrected or not. But they are the only one who are confident that aim in status. I contacted 4 to 5 different attorneys they are of opinion I may have status issue. Hopefully they can understand my situation as I never intended to do this.

This is not your fault but, your Attorney's. He should have guided you thru this properly. Report him to the Bar as Krishnamunn mentioned in his post. So, once again, good luck and please come back and report us the hopefully good news :-)

[xyz0011]

In my opinion, the last action rule refers to the last action taken on the current I-797. When you returned to USA, your last action was based on the first H1B which was current at that time. When your new H1B started, the last action rule will be referred to that current H1B, in this case the last action was the approval, so naturally you continue with your new H1B status. I don't understand what is confusion in this. May be I am wrong.

[xyz0011]

In my opinion, the last action rule refers to the last action taken on the current I-797. When you returned to USA, your last action was based on the first H1B which was current at that time. When your new H1B started, the last action rule will be referred to that current H1B, in this case the last action was the approval, so naturally you continue with your new H1B status. I don't understand what is confusion in this. May be I am wrong.

[hrpatel34]

Friends,

My wife is on H4. In June 2010, I changed company, New Company applied h1 & h4 for us. My Wife left for India on Nov 9, 2010. Our h1 & H4 approved with Notice Date Nov 4, 2010. Our attorney get approvals after my wife left for India. My brother-in-law was going India in same month. I gave him approvals. He passed them to my wife. On Jan 11, 2011, my wife came back through Newark with my 1 yr old baby. On airport she showed new approval (valid through 11/4/2010 - 9/27/2012). She had visa (14 sept 2011) with old approval which is valid through 27 sept 2011. Officer asked for approval which used to get visa. She showed that too. Officer issued an I94 with date 24 Spt 11. New approval is valid till 27 Sept 12. As my baby was with her at that time, she did not checked date of I94. I talked to my attorney while my wife was in india. She told us that my wife will be admitted with new extension for full duration of that extension so we assumed the date is sept 12. In sept 11 we have some unavoidable personal issue which did not allow us to look at any document. Few days back, my attorney asked me for documents so she can renew out visas. At that time I came to know about her I94. She is out of status for more than 180 days. So we have few question.

1. Attorney ask to go to POE to correct I94. If I describe the issue to POE, will they correct I94?

2. My nearest POE is Newark, MY attorney advised me to go to JFK as Newark is hard to convince. What should I give reason If JFK office ask for reason for choosing JFK?

3. Is there any other way to correct I94?

4. Do anyone has any experience at JFK or Newark?

Your reply would be of great help?

[san3297]

Ok iam done with interview. The officer mostly concentrated on my wife as her previous company has some problems. He just asked is this your latest I 94 and this is the last time you left country i said yes. He also asked same question to my wife too so i am assuming he dint make a deal of my I 94. He dint make a decision yet but seems he was ok and attorney also said he was confident that we will have not issues with it.

It seems not an I 94 issue as he never said to me iam out of status or anything. So it still remains a question. But hopefully i will get my gc.