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  1. #1
    Join Date
    Oct 2015
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    1

    Default H1B Overstay Due to Employer's Clerical Error

    I completed my 6 years stay in usa and came back to India. I stayed extra 3 months as part of my recapture time. Company applied H1 extension at that time and I got a file number as well. Unfortunately usics confirmed recently that file number given to me by employer is someone else. Also, they informed to employer that they never received my application to process H1 extension for that perios of stay 3 months. My questions are below:

    1. will this impact my greeencard process that i dont have H1B approved for recapture time?
    2. should my employer apply i-797(H1B) extension again but i have been suggested by employer If i dont apply also it is ok as i stayed <179 days. what is the best case for applying h1?
    3. even though i get my h1 approved under nunc pro tunc,i wont be getting i94. will this create a bar/issue for granting h1b in future?

    At last, over all i stayed 3 months more with out valid I94 how to fix it?????????

    Kindly provide any useful information if you might have.

    Thanks.

  2. #2
    Join Date
    Sep 2005
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    98,846

    Default Re: H1B Overstay Due to Employer's Clerical Error

    Quote Quoting prasad3042
    View Post
    Will this impact my green card process that i don't have H1B approved for recapture time?
    You did not include information in your post about employer-sponsorship for a Green Card, nor anything about obtaining permanent residency through another means. Should we assume that you have a new employer who is willing to sponsor you for a H1B visa and possible permanent residency? A three month overstay is not going to disqualify you from reentry, although even without disqualification any overstay may create issues; if you are approved for a new visa and permitted to reenter, the prior incident should not be a significant factor moving forward.
    Quote Quoting prasad3042
    should my employer apply i-797(H1B) extension again but i have been suggested by employer If i dont apply also it is ok as i stayed <179 days. what is the best case for applying h1?
    Your question is not particularly clear. What I think you're trying to ask is whether your employer should try to correct its prior, defective filing such that the USCIS recognizes your three month stay as an authorized period of recapture time. If your employer is willing to attempt that, I would urge them to go for it.
    Quote Quoting prasad3042
    even though i get my h1 approved under nunc pro tunc,i wont be getting i94.
    Are you talking about what would happen if your former employer seeks to correct its mistake? You are presently in India, so there would be no need to issue you a new I-94.

    You left the U.S. under your old I-94, so there's a record of the discrepancy between your I-94 and your departure date. If the USCIS retroactively approves your recapture time, then you can keep records of the retroactive approval for your use when you seek your next visa and when you next seek to enter the U.S. If your employer does not do that, or does not succeed, you can similarly keep copies of its erroneous application for recapture time along with the USCIS correspondence relating to the rejection of the application due to the error, and be prepared to present that documentation as necessary to bolster your application.

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