h1b problem

[hersheygaile]

HELP!!!i'm confuse!i entered here in the US as a tourist visa last year oct 2008.my 1-94 lapsed last april 30, 2009 but i'm still here in the US because i have a pending immigrant petition as a nurse and my lawyer said i could stay until 180 days which will end on oct 2009. I was filed as h1b for non profit organization last sept 1 as a dietitian on premium processing. My employer told me to just wait for my notice of receipt and approval in 15 days.My question is that it will be possible for the USCIS to approve me because technically i am now out of status but i do have until October to stay here because of my 180 days. I need some answers to clear up my mind.

[devikas81]

Pls. update ur case once you receive any action from USCIS,
I have similar case like you, pls. email me at vmt0606@yahoo.com,
Thanking You,

[hersheygaile]

did u received anything from USCIS already?what is your case?

[martinvisalaw]

CIS cannot approve a change of status to H-1B since you are not maintaining status. You will likely be approved as a notify and need to leave the US, get a H-1B visa, and then re-enter in H-1B status. It is critical that you don't overstay your I-94 by 180 days. If you do, you are subject to a 3 year bar on returning to the US.

You are out of status now, and have been out of status since your I-94 expired. You could be removed (deported) if you were found by CIS.

I suggest getting a second legal opinion because your lawyer might be giving you misleading information. It's hard to tell without knowing all the facts and what exactly s/he said to you.

[hersheygaile]

i don't know what to do right now.i stayed over april 2009 which is the end of my i-94 because i have a pending petition of immigrant as a nurse.And my lawyer said i am allowed to stay until october 2009. But now the problem is I was filed as H1b by another employer so is it possible that they will approve me here?My lawyer said that when i received already the notice of receipt i can stay here while waiting for the approval.And when my approval comes with 1-94 on it i don't have to leave the US but when it has been approved without i-94 i will leave the US for consular processing asap and re-enter here as h1 status.HELP i really don't know what to believe anymore!at the moment i am waiting for my notice of receipt in h1b visa.I only have until oct to get a result for the approval!please advice me what is the best I can do!THANKS

[amsgc]

You should request your new employer to do Premium Processing on your H-1B petition.
You will get a response from USCIS in 2 weeks and you will know for sure whether it has been approved/rejected or if USCIS needs more evidence. If it is approved, you will also know whether it was approved with Change of status (i.e. I94 attached), or whether you are required to leave the country and re-enter on a H-1B visa.
If new evidence needs to be submitted, then you will get a response within two weeks of submitting additional evidence.

The fee for Premium processing is $1000. Note that the beneficiary of the petition (you in this case) is legally allowed to pay the fee for premium processing. But, only the petitioner (your future employer) can file the application for Premium processing.

As far as I know - you are considered in a period of authorized stay as long as your petition for change of status/extension of stay is pending with the USCIS. You will begin to accrue unlawful presence from the day the petition is denied, if that were to happen.

The lawyers on this forum can advise you better.

Originally Posted by hersheygaile

i don't know what to do right now.i stayed over april 2009 which is the end of my i-94 because i have a pending petition of immigrant as a nurse.And my lawyer said i am allowed to stay until october 2009. But now the problem is I was filed as H1b by another employer so is it possible that they will approve me here?My lawyer said that when i received already the notice of receipt i can stay here while waiting for the approval.And when my approval comes with 1-94 on it i don't have to leave the US but when it has been approved without i-94 i will leave the US for consular processing asap and re-enter here as h1 status.HELP i really don't know what to believe anymore!at the moment i am waiting for my notice of receipt in h1b visa.I only have until oct to get a result for the approval!please advice me what is the best I can do!THANKS

[hersheygaile]

I am already in premium processing.They send my papers to USCIS last sept 1 and until now i haven't received anything from them

[amsgc]

It takes 15 calendar days. You should hear something from USCIS next week.
Good luck!

Originally Posted by hersheygaile

I am already in premium processing.They send my papers to USCIS last sept 1 and until now i haven't received anything from them

[hersheygaile]

thanks i hope everything will be ok..one last question what are my chances to have a consular processing?of course i don't want to leave the country and issue my h1b there cause im already here.thanks

[wandmaker]

Originally Posted by hersheygaile

thanks i hope everything will be ok..one last question what are my chances to have a consular processing?of course i don't want to leave the country and issue my h1b there cause im already here.thanks

USCIS will not approve your COS because you have no status, rather they may approve a petition for consular processing. Even if USCIS approves your H1B petition for consular processing, you only have 10% probability to stamp your H1B because

1 - you used your tourist visa to find work
2 - you have overstayed your I-94

[martinvisalaw]

Originally Posted by amsgc

As far as I know - you are considered in a period of authorized stay as long as your petition for change of status/extension of stay is pending with the USCIS. You will begin to accrue unlawful presence from the day the petition is denied, if that were to happen. The lawyers on this forum can advise you better.

OP would only be authorized to stay in the US if the change of status (COS) was filed while she was still in status. Since her status expired last April, she has been out of status since then and filing the COS did not restore her status.

OP - you really should speak with another lawyer, to be safe. You should not be relying on advice on a free forum given the seriousness of your situation.