Posted on: February 28th, 2018
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In our section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari’s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

If you have a question on immigration matters, write We can’t answer every question, but if you ask a short question that can be answered concisely, we’ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here.


QUESTION: My H1B visa expired last week. But the I-94 that I received when I came to the US, which I printed out from the CBP website, is valid for another two years. My I797 is valid for two years as well. I currently work for my company that filed the H1B. I want to make sure it is legal for me to work until the expiration date of my I-94?

ANSWER: Yes. Your current I-94 is the controlling document for your status while in the US. So if your most recent valid I-94 says you are still in H-1B status, then you are in H-1B status and required to work for the H-1B petitioning employer pursuant to your H-1B petition.

The visa (the laminated page put in your passport by the US embassy or consulate) is just a travel document. You only need the visa to be valid when you apply for entry into the US. When the visa expires, it does not affect your immigration status while you are in the US. If you need to leave the US, you will likely need to obtain a new visa in your passport before returning to the US.

Since it is the MOST RECENT I-94 that controls someone’s immigration status, it is important that everyone who enters the US on a nonimmigrant visa (i.e., H-1B, B-1/B-2,  F-1, etc.), or through the Visa Waiver Program (also known as ESTA), or as a Canadian visitor should check the expiration date on their I-94 EVERY time they reenter the US. Do not assume that the expiration date that the CBP officer wrote on the entry stamp in your passport is the same expiration date that is on your I-94. CBP officers can make mistakes. It is the expiration date on your I-94 that matters, even if the I-94 has a different expiration date than the expiration date on the entry stamp in your passport. So make sure to print out your I-94 and check the expiration date on it EVERY time you travel. You can print out your I-94 by going here on the CBP website:


QUESTION: I have H-4 status with an I-94 that expired last month. My husband’s employer filed for an extension of his H-1B and my H-4 two months ago. I now have an offer from an employer that wants to apply for an H-1B for me. But I don’t know if they can file the H-1B application for me or if they have to wait until my H-4 extension is approved. If my H-4 extension is not approved by the time they need to file the H-1B for me, will my H-1B be denied?

ANSWER: Yes, the application for the H-1B can be filed, but whether it can be approved as a change of status will depend on whether or not the pending H-4 extension application is approved.

As a general rule a foreign national must be in valid nonimmigrant status (such as an H-4) in order to apply for an extension of their current status (“EOS”) or a change of status (“COS”) to another nonimmigrant status (such as an H-1B). The expiration date of someone’s nonimmigrant status is determined by the expiration date of their Form I-94 Arrival/Departure Record. So, in your case, your H-4 nonimmigrant status ended last month when your I-94 expired. However, when a non-frivolous EOS or COS application is timely filed (meaning filed before the I-94 expires), then when the I-94 expires the foreign national will then be in a “Period of Authorized Stay”. This means that they are authorized to remain in the US while their application for EOS or COS is pending with USCIS, but this is not the same as being in “status”.

Now when a second application for EOS or COS is filed after the I-94 has expired, but while the foreign national is in a Period of Authorized Stay, the second application for EOS or COS will be considered to be “Bridging” on the first application for EOS or COS. If the H-1B petition were to be filed for you before your H-4 extension is approved, the H-1B petition would be bridging on the H-4 application. If the H-4 application is denied by USCIS for any reason, then the request for the COS to H-1B would be denied as well. In such a situation, USCIS could still approve the H-1B petition, but they would not issue you a new I-94 with the approval notice. You would instead need to leave the US, get an H-1B visa issued in your passport at the US consular post abroad, and then return to the US using the H-1B visa. But keep in mind that your Period of Authorized Stay would end when USCIS denies the H-4 application. The fact that your H-1B petition is still pending with USCIS does not keep you in a Period of Authorized Stay. In such situation the “bridge” has collapsed. So if you find yourself in such a situation, you should contact your experienced immigration lawyer for advice as soon as you receive the Denial from USCIS of the H-4 EOS.

But if the application for H-4 EOS is approved, you will then retroactively be considered to have been in valid H-4 nonimmigrant status from the time your prior H-4 I-94 expired through the expiration date on the new I-94 that is provided to you with the Approval Notice for your H-4 EOS application. In that case, you will considered to have been in “status” when the petition for COS to H-1B was filed, and USCIS will have the ability to approve the COS to H-1B and issue you an I-94 that covers the new H-1B nonimmigrant status.

Please note that this is a brief discussion of a fairly complicated legal issue. So I highly recommend that you consult with me or another experience immigration lawyer as soon as possible, as the little details often make or break someone’s immigration case and it is impossible for me to cover everything in an article like this.

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