Must employment/H-1B starting date connect with B ending date?

[immiq]

If an H-1B is filed before the expiry of B status, can employment/H-1B starting date be requested one or two months after the expiry of B status or it must connect with I-94 of B expiration date?

 

[ImmigAttyLana]

You must always be maintaining valid nonimmigrant status. If there is a gap where you have no status, then you are not maintaining status.

Please let me know if you have any additional questions or if I may be of further assistance to you in this matter.

 

[immiq]

You must always be maintaining valid nonimmigrant status. If there is a gap where you have no status, then you are not maintaining status.

Please let me know if you have any additional questions or if I may be of further assistance to you in this matter.

So, you mean the employment starting date CANNOT be requested one or two month after the expiry of current B status if the H-1B is filed BEFORE the expiry of I-94. Can you give a direct answer?

 

[ImmigAttyLana]

I thought my answer was very direct. You need to maintain status at all times so if the starting date for the H-1B is several months after the expiration of the B-2 I-94, then for those few months, you are NOT in status, which means you are OUT of status, and that is not permissible. Therefore, the requested start date must be the day after the expiration date of the B-2 I-94.

Please let me know if you have any additional questions or if I may be of further assistance to you in this matter.

 

[immiq]

I thought my answer was very direct. You need to maintain status at all times so if the starting date for the H-1B is several months after the expiration of the B-2 I-94, then for those few months, you are NOT in status, which means you are OUT of status, and that is not permissible. Therefore, the requested start date must be the day after the expiration date of the B-2 I-94.

Please let me know if you have any additional questions or if I may be of further assistance to you in this matter.

Thank you for the answer. But my friend showed me his H-1B approval notice and told me a different story. He filed B->H-1B one day before the expiry of his B status (I-94) and indicated in his H-1B petition his employment date would be start in one month. His H-1B was approved with a new I-94 attached. The H-1B validation date is just the same as the employment starting date, one month after his B/I-94 expiration date. Does he have one month out of status? If so, why did the USCIS attach the new I-94? I do not know how to explain this one-month “out of status”? Do you know it?

 

[ImmigAttyLana]

No, I do not have an explanation as to why the USCIS did that.

 

[immiq]

It seems there are no grounds that my friend was out of status for a month in such a case. He timely filed COS before the expiry of his I-94 and the employer indicated in the petition that the employment would start one month after the expiry of his I-94. The CIS approved the H-1B with a new I-94 attached. If the beneficiary files I-485 in the future, should he answer he was ever out of status for one month or answer “No”?

 

[ImmigAttyLana]

I think you may be getting too far ahead of yourself with talking about what to state on the I-485 since that's still very far off. By that time, it is likely the person will have been out of the country at least once or maybe more times and then this period of one month, even if it is out of status technically, will not figure into the discussion for purposes of I-485.

 

[immiq]

I think you may be getting too far ahead of yourself with talking about what to state on the I-485 since that's still very far off. By that time, it is likely the person will have been out of the country at least once or maybe more times and then this period of one month, even if it is out of status technically, will not figure into the discussion for purposes of I-485.

Thank you for the comments. His LC will be adjudicated soon. After that he can file I-140 and I-485 immediately. He told me he would not indicate he was ever out of status for a month. Neither do other legal professionals he consulted think so. So, I still doubt the CIS has grounds to deny such a COS (B->H) filed timely but the employment starting date not connecting with the expiry of current I-94. Just take an example, if someone finds a job just several days before the expiry of B status, and an B->H is filed accordingly. Should he immediately begin to work without waiting for an approval notice coming? If he indicates the employment starting date will be in one or two months, is he out of status during the waiting period? I doubt, even technically.

 

[ImmigAttyLana]

Fine, but your example is totally irrelevant because just because you request the date immediately following the expiration date on the B I-94 does not mean that it will be approved by that date or that the employment has to commence on that date. However, as a good practice, you should always make sure the times in status follow one another without a gap.

 

[immiq]

However, once a petition is filed TIMELY, one is NOT considered out of status (even his I-94 expires during the case pending)and the petition should be approvable unless there are other problems, is s/he?