H1B transfer mistake and 10 year bar. Help!

saldadsf123

New Member
Four years ago, there was a mistake on my H1B transfer. And my employer at that time dismissed me instead of fixing the status for me.
I hired a lawyer filled the "Nunc Pro Tank" many times try to fix my status and it didn't work.

Then I left US at 2017. There was a total 1.5 years unlawful presence and I think it trigged the 10 year bar. During that 1.5 years unlawful presence, I have 1 year got paid regularly and I have all the paychecks.

My H1B transfer was wrong because the H1B transfer was filled as the Consular Processing and I didn't leave US to activate it.

My questions:

1, Do I have to wait 10 years? Can I show my paycheck to the POE to prove I didn't work illegally? Just a typo on the H1B transfer and I have to wait 10 years?

2, should I go to the border to have a try? Just in case they may not have my records?

Thank you so much for the help.
 

newacct

Well-Known Member
When did your I-94 expire? How long was it from when your I-94 expired until you left the US?
 

saldadsf123

New Member
When did your I-94 expire? How long was it from when your I-94 expired until you left the US?
My I-94 expired on 2015/08. I left the US in 2017/02.

My H1B transfer was on 2015/08.

I thought it was successful and I work in the new company from 2015/08 to 2016/08. And then find out the H1B transfer was wrongly filed.

And from 2016/08 to 2017/02 I stayed in the US to fix my status.
 

saldadsf123

New Member
When did your I-94 expire? How long was it from when your I-94 expired until you left the US?
Thank you for your reply newacct. Do you think I can explain this at the POE? Show them all my paychecks and explain that the H1B was approved but that I didn't leave US to activate it.
 

newacct

Well-Known Member
The H1b petition was approved, but it didn't come with an Extension of Stay. If the employer had requested Extension of Stay on the I-129 H1b petition, and it was timely filed, then you wouldn't have accrued unlawful presence while the EOS was pending. However, as you seem to be saying, they didn't request EOS on the I-129. (And even if they had, you would have started accruing unlawful presence when the EOS was denied.) I'm not sure there's much you can do to avoid the ban.

In what status are you now seeking to enter the US?
 

saldadsf123

New Member
The H1b petition was approved, but it didn't come with an Extension of Stay. If the employer had requested Extension of Stay on the I-129 H1b petition, and it was timely filed, then you wouldn't have accrued unlawful presence while the EOS was pending. However, as you seem to be saying, they didn't request EOS on the I-129. (And even if they had, you would have started accruing unlawful presence when the EOS was denied.) I'm not sure there's much you can do to avoid the ban.

In what status are you now seeking to enter the US?

Thank you for your reply newacct. I plan to enter as H1B or F1.
 

newacct

Well-Known Member
So as a non-Canadian citizen, you would need to get a visa to enter into F-1 or H-1b status, right? It is not a matter of just "going to to the border to have a try".
 

saldadsf123

New Member
Thank you again for your reply newacct. Looks like it will be very hard for me to get back US:
1, I need to pass embassy in my country and then pass POE. It's not likely
2, or I need to become a citizen in a third country maybe Canada and go to US POE, but this will take very long time and not likely to work
Do you have any recommendations? Which type of Visa can be helpful?
 

newacct

Well-Known Member
You can try to apply for a visa if you think you are otherwise eligible, and disclose the situation around the previous stay when asked, and they will decide whether you have a ban, and if so, whether to recommend you for a waiver.
 

SusieQQQ

Well-Known Member
^ the previous stay will have to be disclosed on the DS160 visa application form, both in dates of stay question and “have you ever overstayed” question.

It’s a pity OP did not leave as soon as he found out the error, it sounds like he might have made it out with less than a year overstay which would only have been a three year bar and mostly completed by now.

@newacct, whiich type of waiver were you thinking of? I am only aware of extreme hardship waiver for spouse/child of USC or LPR, assumed OP would have mentioned if he had such a spouse. Are there others for this type of bar?
 

newacct

Well-Known Member
@newacct, whiich type of waiver were you thinking of? I am only aware of extreme hardship waiver for spouse/child of USC or LPR, assumed OP would have mentioned if he had such a spouse. Are there others for this type of bar?
Since he is applying for a nonimmigrant visa, he would be seeking a nonimmigrant waiver under INA 212(d)(3)(A). Since he needs to apply for a visa, he can apply for a waiver only if he is denied solely due to the ban (and not due to immigrant intent) and if the officer recommends a waiver. See 9 FAM 305.4-3 for more info.
 

saldadsf123

New Member
Thank you so much for your reply newacct and SusieQQQ. It's really important to me.

1, I didn't leave as soon as I found out the error because my attorney advised me to stay in the US to fill the "Nunc Pro Tank". I was told if I left the US, the waiver would be very hard.

2, please tell me what's the chance of the waiver? Like extremely hard, or half and half, or no harm to have a try? I mean I filled the "Nunc Pro Tank" twice in 2016 before I left the US, and it didn't work. I kind of lost hope on this and I think the immigration officer just doesn't care. I have enough time and energy now, should I give it a try now? Or just wait enough 10 years but at that time I have to face almost the same problem?
 
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