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Consequences Of Being "Out Of Status"
August 10, 2012

The issue of “status” becomes critical when another employer files an H1B transfer petition (or change of status) on behalf of the H1B employee. He/she is to produce proof that the H1B status is being maintained, i.e., the latest pay stubs. If such documentation is not produced, USCIS is generally not convinced that the alien has maintained lawful status. Also, an out-of-status alien is deportable.

USCIS may still approve the H-1B petition filed on behalf of an out-of-status person, but deny the extension of status. In such a situation, the alien has to go for Consular Processing.
But if the person stays in the US beyond the validity of the I-94, he/she is in “unlawful” status. Unlawful presence of 180 days or more kicks in the 3/10 year bar that is triggered on departure from the US.
In the above situations, however, there may be ways to convince USCIS through affidavits or other documents explaining the situation (“nunc pro tunc” requests involving honest mistake, overlooking dates, missing documentation, etc.).

We emphasize that employers and aliens should exercise utmost caution in the above circumstances.

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