It is a common misconception that your H-1B status is tied solely to your visa stamp or your employer’s petition. The most critical document for your legal stay in the U.S. is your Form I-94 (Arrival/Departure Record).If your I-94 expires and an extension is not filed before that date, you are technically “out of status” the very next day. Here is a guide on how to navigate this crisis.
H1B Extension after I-94 Expiry
- 1. The Critical Difference: I-94 vs. H-1B Petition
- 2. Decoding the RFE: “Proof of Departure”
- 3. Risks of Staying: Unlawful Presence & The 3/10 Year Bar
- 4. Can This Be Fixed? The “Nunc Pro Tunc” Option
- 5. Steps to Take Immediately
- Summary Table: Status vs. Presence
1. The Critical Difference: I-94 vs. H-1B Petition
Many professionals track their H-1B expiration date based on their I-797 approval notice. However, when you enter the U.S., a Customs and Border Protection (CBP) officer issues an I-94 with an “Admit Until” date.
- The Rule: Your legal stay ends on the I-94 date, even if your H-1B petition says you can work longer.
- The Mistake: Filing an extension after the I-94 date (even by one day) is considered a “late filing,” which usually results in a denial of the “Extension of Stay” portion of your petition.
2. Decoding the RFE: “Proof of Departure”
If you received an RFE stating you must travel to your home country to provide proof of departure, USCIS is essentially saying:
“We may approve your H-1B petition, but we cannot extend your stay within the U.S. because you were already out of status when you filed.”
This leads to Consular Processing. USCIS may approve the underlying H-1B petition but will not issue a new I-94 (the bottom part of the I-797A). Instead, they issue an I-797B, which requires you to exit the U.S., get a visa stamp at a consulate (like in Chennai, Delhi, or Mumbai), and re-enter to “reset” your I-94.
3. Risks of Staying: Unlawful Presence & The 3/10 Year Bar
The moment your I-94 expires, you begin accruing Unlawful Presence.
- Less than 180 days: You generally won’t face a formal re-entry bar, but you must disclose the overstay on all future visa applications (DS-160).
- More than 180 days: You trigger a 3-year bar from entering the U.S.
- More than 365 days: You trigger a 10-year bar.
Important Note: If you are “out of status,” you generally lose your authorization to work immediately. Continuing to work while your I-94 is expired can lead to serious complications for future Green Card (I-485) filings.
4. Can This Be Fixed? The “Nunc Pro Tunc” Option
In rare cases, a lawyer can file a Nunc Pro Tunc (NPT) request. This asks USCIS to excuse the late filing due to “extraordinary circumstances” beyond your control (e.g., a serious medical emergency or a provable attorney error). However, “I didn’t know the I-94 date” is rarely accepted as a valid excuse by USCIS in 2025.
5. Steps to Take Immediately
- Stop Working: Consult your company’s immigration attorney immediately. Working while out of status is a violation that USCIS takes very seriously.
- Plan Your Departure: If the RFE explicitly asks for proof of departure, staying in the U.S. only increases your “unlawful presence” count.
- Check Visa Appointment Slots: If you are heading to India, check the current wait times for H-1B interviews. Many applicants are currently opting for “Dropbox” (Interview Waiver) if they qualify, which can be faster.
- Inform Your Employer: Ensure your HR and legal teams are aligned on your departure and the plan for your return once the visa is stamped.
Summary Table: Status vs. Presence
| Term | Definition | Consequence of Expiry |
| Out of Status | Violation of visa terms (e.g., not working or late filing). | Loss of work authorization. |
| Unlawful Presence | Staying past the date on your I-94. | Re-entry bars (3 or 10 years). |