H1B transfer approved with Consular processing during Coronavirus

Hi Anil,

I received a Consular approval on my H1B Transfer and It was mentioned Hyderabad as my Consulate and H4 extension is still pending. My employer is asking me to go to Mexico for stamping as In-Person Visa Appointments were cancelled in India because of Corona Virus Epidemic.

What’s the best approach now and How long I can stay in the US.

Please advice.

Thanks,
Bob

Have you already started working for your new employer? Has your i94 already expired?

At this time, US embassy in India, Mexico and Canada have all cancelled appointments and no new appointment is available immediately.

Yes , I am already started working and my I-94 expired in April -2019. what’s the best approach at this situation ?

Unfortunately, there is no other option at this time.

I think your old employer’s H1B would have also expired since your i94 has expired at this time. So, you cannot even go back to work for them to maintain your H1B status.

Did you apply H1B transfer after your i94 expiry? Do you know the reason as to why USCIS approved it with consular processing?

Do you have a valid H1B stamp from old employer?

did you check your I-129 that attorney didn’t request for CP by mistake?

My H1B stamp on my passport was expired on 12/31/2017. i didn’t get a chance to travel after that and I Changed my employer after that the last I-797 approval I received was valid until 04/05/2019 and I-94 expired on 04/15/2019.

My transfer was filed on 04/15/2019 and may be that could be the reason for the consular approval. But I am not sure.

What is the ‘receipt date’ printed on the official USCIS H1B transfer notice?

If the date is after 4/15/2019, then off-course, USCIS has considered as application filed after i94 expiry.

What is your employer doing at this time? Are they allowing you to continue work or have they sent you on leave? What is their opinion?

The Receipt date is showing as 04/15/2019 same day as my I-94 expiry date.
My Employer doesn’t have a clue , he asked me to stop working and make arrangments for my travel.
How long I can stay in US without working ? am I going to accumulate out of status from the date of approval ?If client is ok Can I work from India ? am remotely working in US from last week.
If I am not wrong my wife should travel with me even though her H4 is still pending with USCIS.
please advice

As per the rule, yes you are accumulating unlawful presence.

You and your wife both should leave US as early as possible.

I usually suggest to leave within 2 weeks but given the current travel bans, it is better you find any good time and go out.

The US visa stampings are closed everywhere, so, you may not be able to come back anytime soon either.

You can work for US employer remotely as long as they can find a way to pay you. Since, your case is consular processing, they will not pay you in US.

So, the only option i can think of is to get payment in your home country.

Thanks Anil for the information.
Is there a any possibility to file Nunc pro tunc (NPT) to request I-94 based on the current travel situations ? Is that an option ?

NPT is usually used if there is a gap between your last i94 and current i94.

USCIS has explicitly approved your application with consular processing which means that they found your status to be broken at the time of application itself.

You can try again with NPT but chances seem low at this time.

Did you discuss with your attorney? What is their opinion?

I didn’t get a chance to discuss with attorney at this time. I see that you mentioned that I am accumulating unlawful presence , is it unlawful presence or out of status ? When this is started is it when I received the Consular approval or when my last I-94 expired ?

It started when you got a decision on your pending application.

‘out of status’ happens when your i94 is still valid. Your i94 has already expired and no application is pending for you. Your payroll has also stopped.

So, you have no legal status to stay in US and its called ‘unlawful presence’ as per my information.

Do you think if there will be any announcement from USCIS on H1B Consular Approvals because of the Travel Ban and US Consulates were closed. Giving them approval to continue working some more time without stamping ?

Any thoughts ???

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Nothing has been announced yet. Can’t say if anything will be announced.

Will share if i get to hear anything.