H1->H1 - in the dark on INS decision

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fluid_situation

Registered Users (C)
Dear Jim, Jaxen, and others,

I need your expert advice on this H1 transfer case in which I am now left in the dark.

CASE HISTORY:
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New H1 for company A since 1st February 2001, I-94 valid till 31st January 2004 (result of COS from unexpired F1 OPT->H1).

Laid off from company A, severance pay stub date - 20th December 2001. Company A said they would never cancel my H1 or inform INS of termination of my employment.

Company B sent out H1 transfer/ extension of stay petition with VSC on 19th February 2002; RD - 26th March 2002, ND - 29th March 2002.

INS RFE on 20th August 2002 asking for pay stubs from company A for the period 20th December 2001 - 26th March 2002.

Could not produce the pay stubs, and since I was not working anywhere in the US, I returned to India on 7th September 2002, surrendering company A's I-94 at San Francisco; no questions asked.

Company B withdrew my job offer but not the H1 transfer petition in September 2002 (after I left).

INS sent a "written decision" to company B on 10th January 2003 (perhaps denial of H1 or extension of stay???). Got to know of this from their case status web site.

Company B is now REFUSING to reveal the contents of the "written decision".

I now have an offer from company C and they have provided me with all the papers required to get an H1 visa stamp from Mumbai.

QUESTIONS:
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1. What is the likelyhood of company C's visa stamping getting rejected at Mumbai because of my history? Company C feels it wouldn't be a problem because by leaving the US before INS adjudicated my case, I had already abandoned the H1 transfer to company B and have started with a clean slate.

2. If company C's visa gets stamped, will I likely have a surprise encounter with the 3-year bar when I land in the US in April 2003?

3. If INS had started counting 180-day "overstay" for 3-year bar, when would they have most likely started the countdown? I hope you understand my frustration because I am left in the dark on INS's latest decision on my visa transfer to company B.

4. Have I "overstayed" in the US? My I-94 with company A, which I used to leave the US, had an "expiration date" of 31st January 2004.

5. Have I been illegal in the US except for being "out of status" for the period 20th December 2001 - 26th March 2002? Company B had told that the moment they SENT OUT my H1 transfer petition to VSC, my "out of status" situation would be wiped off and my presence in the US would be legal.

Thanks for your help with my case.

- Fluid
 
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The answers to all your questions hinge on what Company A did when you were laid off. If they actually cancelled your H-1 (yes, I know they told you they would not but they are legally required to either pay you or cancel your visa) then it will depend on when the visa was cancelled. Not maintaining your status makes you deportable but you do not begin to accumulate overstay until INS becomes aware of your illegal presence. Your guess is probably at least as good as mine as to when this occurred. My feeling is that you probably will not have any problem with the 3 year bar but I do not know that for sure since I don't know what happened and when it happened. I know you gave as much information as you have but it just isn't enough to say. I'd try it since it probably will be more difficult to determine what happened than it will to file and see if the H-1 is approved.
 
follow up on this thread

Jim, Jaxen, and others,

I got authentic information from a friend in legal dept in company A that they sent to INS the revocation request in Jan 2002.

1. Given this new piece of information, what would be the answers to my previous questions, especially, your feel on the possibility of a 3 year bar?

2. How long does INS generally take to cancel an H1B based on a request from a sponsoring company?

Fluid
 
Well, if the visa was cancelled in January 2002 and you remained in the US illegally until September. That is more than six months. Although INS may have a delay in processing the reuest to terminate the visa they should, when they get around to it, cancel the visa as of January 2002, which is when you went out of status.
 
http://www.twmlaw.com/resources/general26cont.htm

Note especially:

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As background, "unlawful presence" is a new term ofart created by § 301 of the IIRIRA, which amended INA §212(a)(9). The statute defines "unlawfully present" asbeing in the United States "after the expiration of theperiod of stay authorized by the Attorney General," or beingpresent without being admitted or paroled. As of April 1, 1997, analien who has been unlawfully present in the United States formore than 180 days but less than one year and who voluntarilyleaves the country is ineligible for admission or reentry to theUnited States for three years. An alien unlawfully present for oneyear or more and who leaves or is removed from the United Statesis inadmissible for ten years. These two provisions arecolloquially known as the 3/10 year bar. A related new ground ofinadmissibility affects aliens who have been unlawfully present inthe United States for an aggregate period of more than one year,and who seek to reenter without being admitted.

A September 19, 1997 INS memorandum significantly changed theService’s interpretation of what constitutes "unlawfulpresence" for nonimmigrants. Under the Service’s modifiedinterpretation:

"nlawful presence with respect to a nonimmigrant includes only periods of stay in the United States beyond the date noted on Form I–94, Arrival/Departure Record. Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment). Unlawful presence for a nonimmigrant may begin to accrue before the expiration date noted on the I–94, however, in two circumstances: (1) when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings; or (2) when the INS makes such a determination during the course of adjudicating a benefit application."

The State Department issued a cable agreeing with this INSmemo.

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There seems to be a lot of confusion about "unlawful presence", "overstay" etc.

Fluid
 
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Hi tt tt,

I have been seeing your presence again lately on this forum. What is your opinion on my posting below, esp on the 3-year bar? Thanks.

Fluid
 
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