This is the first of a new feature we will put in every issue of the ImmInfo Newsletter - Case Studies. These case studies are based on actual cases, with the facts changed so that the privacy of the individual is protected. They are intended to be educational and illustrative.

Johann worked for a company as an H1B. He was a very good worker and was valued highly by his company. In July, 2009, Johann returned to his home country for a visit. While there, he applied for an received a new H1B visa. The visa was valid through September 30, 2011 - the validity period of his H1B approval notice (I-797).

When Johann returned to the United States on August 1, 2009, he failed to notice that the CBP officer at the airport only gave him an authorized period of stay through September 15, 2009. Why did this happen? Because Johann's passport was scheduled to expire on September 15, 2009. It didn't matter that his visa and H petition were both valid through 2011, because the passport was about to expire CBP only gave him a short period of entry.

Unfortunately, Johann didn't notice this problem. Worse, neither he nor his employer updated his I-9. Had they done so, the would have caught the problem. Instead, Johann simply renewed his passport and went about his business. In April, 2010, he noticed that his I-94 had expired and he contacted our office.

We had to inform him that he had been working without authorization since September 15th of the previous year. Worse, he has been in "unlawful presence" since that date. Since he now has more than 180 days in unlawful presence, he is in a very difficult spot.

He cannot change or extend his status because you have to be in lawful nonimmigrant status to do that - which he is not. His only choice is to leave the United States. When he leaves, however, he will incur the three year bar on return. If he doesn't leave before September 14th, however, and then leaves, he will incur the ten year bar.

Had Johann and his employer complied with the law and updated his I-9 with this new I-94 presumably they would have noticed the problem in time to do something about it. Now it is too late. Johann faces an immediate crisis and his employer is looking at a fine if ICE audits the company's I-9s.

The only possible remedy for Johann is to turn himself in to ICE and ask them to initiate removal proceedings. If they do this, and he leaves voluntarily, the law provides for an exemption from the three year bar. This only works for people who have more than 180 days, but less than 12 months of unlawful presence when they leave voluntarily after removal proceedings have been initiated.

Johann has asked us to visit ICE on his behalf and ask them to initiate removal proceedings against him. If they agree, he will leave the US voluntarily. He will have to get a new H1B visa, but after he does, he can return and resume his job.

The lesson here is pay attention every time you get a new I-94 and make sure that the departure date is correct. If you are given less time that you expected, do what needs to be done to make sure that you extend your status before the I-94 expiration date. In every case, when you return from abroad or get a status extension, make sure that your employer updates your I-9.