View Full Version : Yet another case of unintentional Out of Status due to expired I-94

06-16-2011, 03:43 PM
Hello Everybody,

I am new to this forum and I am seeking your advice for my case. I understand that I will ultimately need to get in touch with an experienced attorney. However, I am writing here to educate myself of the possible options.

Here goes my story.

I have unintentionally accrued unlawful presence in the country for more than 180 days and I also worked during that period as my H1B extension was valid.

The H1B visa stamp on my passport was valid until 02/25/2010. My employer filed for my H1B extension in Aug 2009 we got an approval up until 12/25/2010. Next, I made a trip to India in Dec 2009 and came back in Jan 2010. The I-94 that I received at the POE upon my return was marked valid only until 2/25/2010 which I did not notice and the IO did not bother to mention it. :(

After coming back from India, I continued to work until H1B extension was valid ( 12/25/2010). We also applied for my change of status to H4 in Oct 2010 as I had completed 6 years on my H1B visa. My H4 status was approved and I received a new I-94 card with the approval that was valid from 12/08/2010 to 05/12/2011.

My husband's employer initiated his GC process last year in EB2 category. The country of chargeability is Kenya so the priority date is current. We have filed for I485 with him being the primary applicant and myself as the spouse. We just received our EAD/AP documents.

Our attorney made us aware that I had an unlawful presence in the country in between 2/25/2010 and 12/08/2010 as my I-94 had expired. This is more than 180 days. We will most likely get an RFE when they start to process our I485. I am trying to think if there is a way out of this. What can explanation can we possibly provide to USCIS except that this was something unintentional and it was because of negligence partly on IO's part to set the I-94 expiration to 2/25/2010 inspite of having a valid extension until 12/25/2010 and partly on my side to not take notice of it.

We are expecting a baby in Sept so I am trying to be as prepared as I can be should we receive an RFE.

Any thoughts, suggestions will be greatly appreciated. I have read several different threads in this forum on this where people in similar situation have received their GC so I think that there may be a way out but I am being cautiously optimistic. Please also recommend some good law firm to handle this as we are not happy with our current attorneys and would like to switch over.


06-16-2011, 04:31 PM
Don't know if this helps but ... I had a similar thing happen to me a few years ago. The IO at the POE issued me a I-94 well short of my I-797 validity and well short of the I-94 attached to my I-797 and I did't notice it until a few months later. Luckily I was short of 180 days. My attorney personally went to the local immigration office and explained the situation and they admitted their mistake and issued me a new I-94. Check with your attorney to see if they can personally go to the local immigration office and get a letter or something explaining the situation from them .

06-18-2011, 02:14 AM
thanks hsd31. Unfortunately, I did not notice the date on the I94 that was given at the POE until March 2011 and that is well above 180 days. I am still to see if there is a way out of this situation but I do appreciate you sharing your experience with me.