Overstaying on H1b visa more than year

[onkarb]

Hi,


Following is my current visa situation .
My H1 Petition expired on march 21,2020. I am in my fifth year of H1 visa. I was in the process of transferring my visa ( filed in feb 2020 and got RFE) but due to lack of projects my employer has withdrawn my petition.My last day of employment was May 22 , 2020. My last paycheck was on June 15th , 2020. I filed for change of status I -539 to B 2 visa on May 21, 2020 and it's still processing. On November 6th , 202oI reapplied I 539 for B2.. both applications are processing..

I returned to India on 26 April 2021 due to a family emergency.
What problems will I fave if I have to go back to US on H1 again.

Thanks

[newacct]

So the I-129 was withdrawn while it was still pending?

[onkarb]

Yes. Around July 2020.

[newacct]

Your first Extension of Stay (with your I-129 H1b extension) was timely-filed, so you did not accrue unlawful presence while it was pending. Your I-539 for Change of Status to B2 was not timely-filed, since you did not have status at the time if was filed (and the H1b Extension of Stay, which would have granted status when the Change of Status was filed, was never approved), so it did not protect you against accruing unlawful presence while it was pending. Neither did your second I-539 for Extension of Stay for B2. So I think you accrued just under a year of unlawful presence from when your I-129 was withdrawn to when you left the US, and triggered a 3-year ban upon leaving the US. You would probably need a waiver if you wish to enter the US during this 3-year period (i.e. before 26 April 2024).

[onkarb]

Wouldn’t unlawful presence triggered when I 94 initially expired on 21 March 2020 resulting in 13 months overstay

[onkarb]

How difficult to entry now in US. I consulted lawyers but no one is sure. Tell me to try with USCIS.

[newacct]

Wouldn’t unlawful presence triggered when I 94 initially expired on 21 March 2020 resulting in 13 months overstay

You do not accrue unlawful presence while a timely-filed, non-frivolous Extension of Stay or Change of Status application is pending, as long as you did not work illegally during that time. Your I-129, which requested Extension of Stay, was timely filed (i.e. filed while you were still in status), and not frivolous. It was withdrawn later only because you stopped working there; that does not make the original application frivolous. You worked legally during that time as you are authorized to work for 240 days after I-94 expiry during a pending H1b extension. Therefore, you did not accrue unlawful presence during the period of time the I-129 was pending (i.e. until May 2020).

You should keep copies of the I-129 receipt, and any notice of its withdrawal, to prove that it was pending for that time.

See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(3)(B) (on page 87 of this PDF):

However, according to USCIS policy, an alien does not accrue unlawful presence (the accrual of unlawful presence is tolled), and is considered in a period of stay authorized for purposes of sections 212(a)(9)(B)(i)(I), (B)(i)(II), and (C)(i)(I) of the Act during the entire period a properly filed EOS or COS application is pending, if the EOS or COS application meets the following requirements:
· the non-frivolous request for EOS or COS was filed timely. To be considered timely, the application must have been filed with USCIS, i.e. be physically received (unless specified otherwise, such as mailing or posting date) before the previously authorized stay expired. See 8 CFR 103.2(a)(7) ; 8 CFR 214.1(c)(4) ; 8 CFR 248.1(b) . An untimely request may be excused in USCIS’ discretion pursuant to 8 CFR 214.1(c)(4) and 8 CFR 248.1(b); and
· the alien did not work without authorization before the application for EOS or COS was filed or while the application is pending; and
· the alien has not failed to maintain his or her status prior to the filing of the request for EOS or COS.

Chapter 40.9.2(b)(3)(D)(iv) (on page 89) says that if a timely-filed, non-frivolous application is denied for cause other than unauthorized employment, unlawful presence starts accruing on the date after the denial:

If a timely filed, non-frivolous request for EOS or COS is denied for cause, unlawful presence begins to accrue the day after the request is denied.

I believe a withdrawal should be treated like a denial for cause.

Chapter 40.9.2(b)(3)(D)(vii) (on page 90) explains that subsequent EOS/COS filed after status expired and while an initial EOS/COS was pending, does not protect against accrual of unlawful presence if the initial EOS/COS is denied. This is why your I-539s did not protect you against accruing unlawful presence.

However, the filing of a request for EOS or COS does not put an individual into valid and authorized nonimmigrant status, i.e. he or she is not in authorized status. Therefore, if an individual has filed an initial application for EOS or COS and subsequently files additional (untimely) requests for EOS or COS, the subsequently filed request will not stop the individual from accruing unlawful presence, if the initial request is denied.

Also see 9 FAM 302.11-3(B)(1).b(4):

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:
(4) (U) For individuals who have applied for extension of stay or change of nonimmigrant classification and who have remained in the United States after expiration of the I-94 while awaiting DHS's decision, the entire period of the pendency of the application, provided that:
(a) (U) the individual does not work unlawfully while the application is pending and did not work unlawfully prior to filing the application; and
(b) (U) the individual did not otherwise fail to maintain his or her status prior to the filing of the application (unless the application is approved at the discretion of USCIS and the failure to maintain status is solely a result of the expiration of the Form I-94), and further provided either:
(i) (U) that the application was subsequently approved; or
(ii) (U) if the application was denied or the individual departed while the application was still pending, that the application was timely filed and nonfrivolous.

[onkarb]

Ok. Thank you.