Visa overstay - revocation date or i94 expiry date?

[NeptuneFC]

H1 was revoked in November 2019. I94 expiry date was Aug 2020. Which date will be considered for considering visa overstay?

 

[newacct]

"Visa overstay" is not a well-defined term. "Unlawful presence" (for the purposes of the 3-year and 10-year bans) starts accruing after I-94 expires.

 

[whitemimauz3]

Count 60 days time from November 2019 for you to have new employer file H1b petition, move to other status or depart country. Failure to take action within 60 days will be considered out of status even though I-94 is good until August 2020.

 

[NeptuneFC]

Count 60 days time from November 2019 for you to have new employer file H1b petition, move to other status or depart country. Failure to take action within 60 days will be considered out of status even though I-94 is good until August 2020.

I’d left in November 2020. So 3 year ban should be in place?

 

[newacct]

I’d left in November 2020. So 3 year ban should be in place?

No. I'm not sure where you get that idea; the previous poster was correct but did not say anything about unlawful presence or the ban. Like I said, unlawful presence only starts accruing after the I-94 expires, which was in August 2020. So if you left in November 2020, you only accrued about 3 months of unlawful presence before you left, and thus triggered no ban. (Of course, not having a ban does not mean you will get a visa.)

 

[NeptuneFC]

No. I'm not sure where you get that idea; the previous poster was correct but did not say anything about unlawful presence or the ban. Like I said, unlawful presence only starts accruing after the I-94 expires, which was in August 2020. So if you left in November 2020, you only accrued about 3 months of unlawful presence before you left, and thus triggered no ban. (Of course, not having a ban does not mean you will get a visa.)

So according to you, even if my visa got revoked in November 2019, I was still legally present till August 2020?

 

[newacct]

So according to you, even if my visa got revoked in November 2019, I was still legally present till August 2020?

The law only talks about "unlawfully present" or "unlawful presence" with respect to the 3-year and 10-year bans. It does not talk about "legally present".

The calculation of "unlawful presence" is detailed in various manuals. Basically, only 3 things can cause unlawful presence to start accruing: 1) staying past the date on your I-94, 2) applying to USCIS for a benefit and it being denied with a determination that you are out of status, or 3) being put in removal proceedings and being ruled out of status by the immigration judge. Going out of status does it in itself cause unlawful presence to start accruing.

See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(1)(E)(i) (on page 76 of this PDF):

(i) Nonimmigrants Admitted until a Specific Date (Date Certain)

Nonimmigrants admitted until a specific date will generally begin to accrue unlawful presence the day following the date the authorized period of admission expires, as noted on Form I-94 , Arrival/Departure Record.

If USCIS finds, during the adjudication of a request for immigration benefit, that the alien has violated his or her nonimmigrant status, unlawful presence will begin to accrue either the day after Form I-94 expires or the day after USCIS denies the request, whichever is earlier.

If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation or removal proceedings, unlawful presence begins to accrue the day after the immigration judge’s order or the day after the Form I-94 expired, whichever is earlier.

It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated.

And 9 FAM 302.11-3(B)(1).b(1):

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:


(1) (U) For individuals inspected and admitted or paroled until a date specified on the Form I-94 or any extension, any period of presence in the United States up until either:


(a) (U) the expiration of the Form I-94 (or any extension); or


(b) (U) a formal finding of a status violation made by DHS, an IJ, or the BIA in the context of an application for any immigration benefit or in removal proceedings, whichever comes first.