H1B Visa Rejection 9/20/07

[nkayn]

Briefing:
I finished my MS in US in summer 2006 and obtained OPT till end of July 2007. I Found a job in April 2007. I Got my H1B petition approved and then went to India to get visa stamped on the passport. The officer rejected my visa and banned me for 3 years giving me the reason " Illegal stay for more than 180 days(6 months) "
According to the officer I MUST be employed throughout the OPT period in order to be in status( She claims my stay beyond my graduation till April 2007 (when I found a job) exceeded 180 days).
As far as I know, OPT can be used to "SEARCH" for a job as well till it expires.

Question:
Now for those who had time to read the above briefing and have some knowledge in the related law, was the officer correct in rejecting my visa based on the stated reason? Anyone know of a similar case? Is there a chance for me to fight back? Any tips and pointers will be greatly appreciated.

Thanks for your time.
Good day

 

[snugjoint]

The 3-year ban is triggered when your accumulated "unlawful presence" exceeds 180 days. Unlawful presense begins when your authorized period of stay expires. The judgement of the authorized stay relies on what your I-94 says. In other words, if you overstay the expiration date of your I-94, you will be unlawfully present. But your I-94 should have said "D/S" instead of stating a specific date.

The OPT is intended to be used for "practical training," effectively extending a student's stay for up to 12 months and allowing the student to work as a part of education after completing a degree program. After obtaining OPT, you did not utilize the entire period of your "practical training." Even if you didn't have any ill intension, this is at least violation of status, and you are considered not to have maintained your status as a student. If this "search period" had been a matter of days of weeks, it might not have been so serious, but you ended up not working at all for the ENTIRE period of your OPT. I think there is a room for interpretation about if the Consular officer's decision was entirely correct but it was at least not baseless. Job hunting during the entire "practical training" period isn't exactly what the law intended.

If you want to fight, the first thing you should do is to find a competent immigration attorney and consult, of course. But it is my observation that appealing and reversing a decision made by Consular officer is a time-consuming and daunting task to say the least.