Legal Question in Immigration Law in California

Re: h1 tfr pending since june 08

You may be out of status.If you are located in Orange, San Diego or Imperial counties, you can email me your contact info, so we can discuss your particular situation. There is no charge for consultation.

Re: h1 tfr pending since june 08

at the end of the day, you may just end up with an approval notice saying that you need to return to your home country for an interview to get the H-1B Visa. However, it is theoretically possible that they started the 180 day count on you from the date you responded to the RFE. one of the ways that triggers the onset of the 180 day "unlawful presence" count is if when pursuing an immigration benefit, the Service finds you to have been "out of status".

There is a critical difference between being "out of status" and being "unlawfully present." Any violation of nonimmigrant status puts you "out of status." For example, if you are in a nonimmigrant status, such as H-1B or TN, that requires you to work exclusively for the petitioning employer, and he either works for an additional employer or changes employers all together without prior authorization from USCIS, then he goes out of status upon the first such violation. An alien who ceases employment with the petitioning employer is also out of status. The dependent child of a nonimmigrant who turns twenty-one (and is therefore no longer eligible for dependent status as a "child"), is out of status.

"Unlawful presence," on the other hand, has a very specific meaning. An alien begins to accrue unlawful presence only when:

her I-94 has expired and she failed to timely file a non-frivolous request for extension or change of nonimmigrant status.

If he or she timely filed an extension of stay or change of status, then he does not accrue any unlawful presence, even after her I-94 expires, for as long as the petition remains pending. If that petition is ultimately approved, then she never acquires any unlawful presence. If it is ultimately denied, then she accrues unlawful presence starting on the date the denial notice is issued; or

USCIS or an Immigration Judge finds that the alien has violated her status.

Any nonimmigrant, no matter what his status, who is found by USCIS or an Immigration Judge to have violated his status, begins to accrue unlawful presence upon the date of that finding, even if his I-94 has not expired.

Re: h1 tfr pending since june 08

There are two parts of the case: 1. the petition could be approved without 2. the extension of status. The lawyer should not have filed for extension of the status portion of the case and had you leave the U.S. to get the visa because to file for extension and stay in the U.S. one has to be in legal status at the time. If you do not work for an H-1 employer when on H-1 status, you're out of status and thus can't extend while in the U.S. and departure to get the visa is necessary. But now that you've applied, sit tight and see what happens.

Contact me for what will be needed next. I have a feeling your case is not over. It could be possible to get the visa issued, but it is certainty that's the issue.

Check out my website at http://www.yardum-hunter.com or email me directly for more information at [email protected].

Sincerely,

Alice Yardum-Hunter, Attorney at Law, Certified Specialist, State Bar of CA, Bd. of Legal Specialization