I'm barred? I need your opinion
 

First, I received an approval of my H1B, but the COS was denied because it was untimely filed, I have dated evidences confirmed that my lawyer filed it 7 days before the expiry of my I94.

I filed a motion and waited, after two years the motion was granted, but the COS was denied not because it was untimely filed, but because “the applicant has failed to established an intention to leave the country after his visit� according to the letter.

I immediately left the U.S. and filed the approved H1B in KL, The application was refused on the ground that '...I stayed in the U.S. for 865 days...', and the consul ended by saying “…You are out of status for 3 years� then my passport was stamped ‘Application received’ without a code written on it, my current 10yr visa was left untouched.

Because of the time constraint I missed to ask the consul the following 3 questions: Could I be able to re-enter the U.S. with my 10yr visa or the refusal has voided the visa automatically?
When a new employer should file a fresh H1B application for me?
What does she meant ‘You’re out of status for 3 years'? Any advice...

Re: Am I barred? I need your opinion
 

On Thu, 07 Aug 2003 07:29:43 +0000, rodli wrote:


    > First, I received an approval of my H1B, but the COS was denied because
    > it was untimely filed, I have dated evidences confirmed that my lawyer
    > filed it 7 days before the expiry of my I94.
    >
    > I filed a motion and waited, after two years the motion was granted, but
    > the COS was denied not because it was untimely filed, but because “the
    > applicant has failed to establish an intention to leave the country
    > after his visitâ€? according to the letter.

Sigh. The H-1B does not require this intent. INS/BCIS screwed up.

    > I immediately left the U.S. and filed the approved in K.L., The
    > application was refused on the ground that I stayed in the U.S. for more
    > than 2 years, and the consul ended by saying “…You are out of status
    > for 3 yearsâ€? then my passport was stamped ‘Application received’
    > without a code written on it, my current 10yr visa was left untouched.

Unfortunately, that was correct. Leaving the US in that situation was a
mistake. The correct thing would have been to file another motion to
reopen and wait for that to be approved. Also, a Congressperson could have
been of help there.

    > Because of the time constraint I missed to ask the consul the following
    > 3 questions: Can I reenter the U.S. with my 10yr visa or is it already
    > void?

You are banned from the US for ten years with ANY visa.

    > When a new sponsor can submit a fresh H1B application for me?

Ten years from now. The exception is if you can obtain a waiver of
inadmissibility. Given how grossly unjustified the denial of the COS was,
you might have a case on that.

    > What does she meant ‘You’re out of status for 3 years?’ Any advice...

You did not have H-1B status from the date your I-94 expired. Had BCIS
granted your motion to reopen, that would not be a problem, and you would
be retroactively in status. Unfortunately, you left the US, and that cast
in stone the fact that you were out of status.

--
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barred for 10 years?
 

Thank you for your time in responding my enquiry, I appreciate it.

If indeed I'm barred:
1. Why the consul did not mentioned it during the interview? neither written explanantion/or stated specific violation of ina.
2. Why my current 10 yr. visa was not cancelled?
3. Why the stampped has no code on it like: 212(a) for3/10yr bar.

Re: Am I barred? I need your opinion
 

rodli <[email protected]> wrote in message news:<[email protected]>...
    > Thank you for your time in responding my enquiry, I appreciate it.
    >
    >
    >
    > If indeed I'm barred:
    >
    > 1. Why the consul did not mentioned it during the interview?
    > neither written explanantion/or stated specific violation of ina.
    >
    > 2. Why my current 10 yr. visa was not cancelled?
    >
    > 3. Why the stampped has no code on it like: 212(a) for3/10yr bar.

Hi,

why did you apply for change of status? from F-1 to H-1B? I'm not an
expert but I think the key is to find out whether you are out of
status or unlawful present. Can you prove that you are not subject to
3/10 years ban (there are a lot info on the web)? I am currently in
the similar situation, my lawyer said that I maybe ok. I'm keeping my
finger crossed though.

Re: Am I barred? I need your opinion
 

"lee" <[email protected]> wrote in message
news:[email protected]...
    > rodli <[email protected]> wrote in message
news:<[email protected]>...
    > > Thank you for your time in responding my enquiry, I appreciate it.
    > >
    > > If indeed I'm barred:
    > >
    > > 1. Why the consul did not mentioned it during the interview?
    > > neither written explanantion/or stated specific violation of ina.
    > >
    > > 2. Why my current 10 yr. visa was not cancelled?
    > >
    > > 3. Why the stampped has no code on it like: 212(a) for3/10yr bar.
    > Hi,
    > why did you apply for change of status? from F-1 to H-1B? I'm not an
    > expert but I think the key is to find out whether you are out of
    > status or unlawful present. Can you prove that you are not subject to
    > 3/10 years ban (there are a lot info on the web)? I am currently in
    > the similar situation, my lawyer said that I maybe ok. I'm keeping my
    > finger crossed though.

Your lawyer said you 'may be OK'?
Maybe you should change lawyers.
There is a clear-cut difference between being out of status and accruing
illegal presence towards the 3/10 year bars.
Illegal presence is accrued in the following cases:

- entering the US without inspection (swimming across the border);
- overstaying your I-94 (except when it says D/S - Duration of Status);
- BCIS or an immigration judge has found that you violated your status (when
denying a Change of Status for example).

So, it shouldn't be all that difficult to determine whether you're barred or
not.

Re: Am I barred? I need your opinion
 

On Sat, 09 Aug 2003 00:36:55 +0000, rodli wrote:


    > Thank you for your time in responding my enquiry, I appreciate it.
    >
    > If indeed I'm barred:
    >
    > 1. Why the consul did not mentioned it during the interview?
    > neither written explanantion/or stated specific violation of ina.

She did mention it: she said "you were out of status for three years".

    > 2. Why my current 10 yr. visa was not cancelled?

May have been an oversight, or it may have been because the law considers
such a visa already cancelled based on section 222(g) of the INA (although
I'm not sure if that would apply in your case).

    > 3. Why the stampped has no code on it like: 212(a) for3/10yr bar.

Again, may have been an oversight. Consular officers tend to be very
junior people who don't always know the details of the law.

The other theory is that she may have simply denied the visa based on the
suspicion that you would go out of status again, and not even evaluated
whether you are subject to a ban, since she would deny the visa anyway.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please support H.R. 539 and H.R. 832. More information at
http://www.kkeane.com/lobbyspousal-faq.shtml

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Now with new photos! Please feel free to enjoy some of my photographs at my
new Web site http://www.ingopakleppa.com ! Comments are welcome.