H1B visa and violation of status
 

HI all,

I was shocked to find out recently that I worked without authorization for a period of 10 months under H1-B in 1999 when my wife and I were ready to file for I-485 adjustment of status application (on her behalf, employment based application).

The story is I don't have I-94 form attached on the H1-B approval notice (I-797). At that time, I didn't know I must leave the US and get the H1-B approved by the US consulates overseas. I didn't do so 10 months later when I went back to my home country visiting friends and families.

My question is do I subject to the 3 years ban when I leave the US for consular interview for the green card (since I couldn't adjust my status in the US if 245(i) doesn't pass)?

I think the key is whether I'm "unlawful presence" in the US during that 10 months period.

anyone is in similar situation? am I subjected to the 3 years ban???

shocked and frustrated,
Lee

Re: H1B visa and violation of status
 

On Fri, 09 Aug 2002 13:45:07 -0700, Lee2002 wrote:


    > HI all,
    > I was shocked to find out recently that I worked without authorization for a period
    > of 10 months under H1-B in 1999 when my wife and I were ready to file for I-485
    > adjustment of status application (on her behalf, employment based application).
    > The story is I don't have I-94 form attached on the H1-B approval notice (I-797).
    > At that time, I didn't know I must leave the US and get the H1-B approved by the US
    > consulates overseas. I didn't do so 10 months later when I went back to my home
    > country visiting friends and families.

What was the H-1B approval for? An initial H-1B? A transfer to a new employer?
An extension of a previous H-1B? What status did you have before getting the
H-1B approval?

    > My question is do I subject to the 3 years ban when I leave the US for consular
    > interview for the green card (since I couldn't adjust my status in the US if 245(i)
    > doesn't pass)?

Don't throw out 245(i) too quickly. Depending on your wife's priority date, you may
still be grandfathered in. More specifically, as long as her Labor Certification was
filed before April 21, 2001 (I think that was the day - please double-check it), you
should be eligible to use 245(i).

    > I think the key is whether I'm "unlawful presence" in the US during that 10
    > months period.

It depends on the exact circumstances of your case. Most importantly, what status
were you in before that happened, and when would that status have expired if it
hadn't been for the new H-1B? For instance, if you were an F-1 before that was
"duration of status" then you may not have a problem because you would have violated
your status, but not been unlawfully present. Generally - with exceptions - the rule
is that until your I-94's expiration date comes around, you don't accrue unlawful
presence, even if you are out of status.

I would strongly recommend that you hire a competent attorney immediately to
straighten this out.

    > anyone is in similar situation? am I subjected to the 3 years ban???

Even if you are, and even if you don't qualify for 245(i), you may still be able to
fix that with the aid of a good attorney. There is a trick around the 3-year ban, but
it is scary, and you should not attempt it alone! Have your attorney submit you for
deportation. The reason is that deportation proceedings cancel the ban. Deportation
(or, more accurately, removal) carries its own ban of five years. To get around that,
apply for voluntary departure. It is important to do that only after proceedings have
started, or you wouldn't get the benefit of having the three-year ban cancelled.

Re: Re: H1B visa and violation of status
 

Thanks for your reply,

It was my initial H1-B approval. I was under F-1 optional practical training at that time.

Here comes the trickey part:

my practical training expired on July 7 1999. Since the H1-B quota was full at that time, I had to wait for 3 months to get my initial H1-B approved on September 02, 1999 (it was valid between Oct 01, 1999 to March 01, 2002). I didn't go back to my home country to adjust my status to H1-B until July 2000. ( continued to work during that 10 months period)

Do you think:

1. I am overstaying my F-1 status since my practical training expired on july 1999. Since I didn't adjust my status to H1-B at the US consulate yet.

2. I violated my H1-B status because I didn't seek approval from the US consulate in my home country as instructed in my I-797 notice?


I had scheduled an appointment with my wife's lawyer this coming Monday, he sounds a little impatient. maybe he thinks that he represents my wife not me. maybe i should offer him some consultation fee. i think that he should be the lawyer I should use because he is working on my wife's I-485 application.

I just felt strange that he submited I-824 form so that after my wife get her green card, I can schedule an appointment with the US consulate in Malaysia for interview as following to join basis.

If i am subject to 3-year ban, i should NOT leave the US for interviewing , am I right?? I should wait for the passage of 245(i), i still have time because my current H1-B will expire in 2005.

My wife's labor certification was filed on August 2001, so I could not use the 245(i) unless the congress extends it again!


anyone else has any inputs??? I start to pay attention to the immigration chat room recently and realize that there are so much I didn't know about Us immigration law.

Thanks!!!!!

Lee