Hi. My I-797B expired on 30 Sep'14 but I never got H1B visa stamped on my passport. Now, if my employer has to apply for H1B would he have t...

Question

Hi.

My I-797B expired on 30 Sep'14 but I never got H1B visa stamped on my passport. Now, if my employer has to apply for H1B would he have to file a new petition? Would I still have to undergo the entire process again and be counted in the 65k cap? TIA.

-- rahul

Answer

If your H-1B validity period ended on 09/30/2014, then you would be out of status. Your employer should have filed an H-1B extension (form I-129) before that date. If you file for an extension of stay now, it would be denied, based on the sparse facts you have provided. Furthermore, if you are in fact out of status, then you have been accruing illegal presence since 10/01/2014, making you subject to the 3/10 bar to admissibility if you leave the country & re-enter, after having accrued 180+ days of illegal presence.

I highly recommend you have an experienced immigration attorney review your entire file to confirm your current status. If you are in the San Fernando Valley, or Ventura County, feel free to contact my office for a complimentary consultation at my Warner Center office.