B2 Denied - Need Help

[deenix]

I was on H1B status up until Aug 2012. I had wage issues with my employer and I had to leave immediately. I filed for B2 that same month (reason was that I needed time to file a lawsuit to claim by back pay and I provided a letter form lawyer filing suit, financial support, overseas residence, personal statement etc. ).
My B2 was denied end of December with no specific reason.

**** **** The record indicates that you entered the United States on August 14 2002 in F-1 status. You were granted
a change of status to HIB on November 17, 2010. On August 15, 2012 you filed a request for a change
of status to B-2 status.

Section of the INA states in pertain part:

The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any non-immígrant classificatìon to any other nonimrnígrant cIassìfication. Therefore, a change of classifìcation under Section 248 of the Act may be granted at the discretion of
USCIS.

After a careful review of the documentation submitted, it has been determined that your request for a change of nonimmigrant status does not Warrant the favorable exercise of the Attorney General's discretion.

Therefore, your application is denied. This decision is Without prejudice to consideration Of subsequent
applications to extend/ change nonimmigrant status filed with USCIS. **** **** ****


Here are my questions:

1. Should I file the motion of appeal to reopen the case an reconsider new evidence (I am currently out of status because of the denial and will have to file this) and wait for a decision?
2. Should I leave the country after filing motion of appeal and before the 180 day lawful presence period (approx Feb 15th 2013)
3. Can I still file for H1b employment after my motion to appeal? If so, do I need to leave the US to pursue consular processing?

[peace999]

I think you need to consult a good immigration attorney asap. You won't get good answers about your case here.
There are two major issues;
*'About filing motion of appeal' ; is it worthwhile filing that, only a good immigration attorney can tell you that.
* When did your 'out of status' period begin; was it in Dec when you received a B2 denial ? You don't want to be out of status for more than 180 days
and then leave the country only to find that you have incurred a 3yr re-admission bar.

[deenix]

Thanks for the quick response.
I am currently consulting an immigration lawyer but I need other opinions as these decisions are subjective. From what I understand my out of status begins when I initially filed for B2 (aug 15 2012). My 180 days comes up around Feb 15th 2013. My B2 was denied on Dec 27th 2012. I have 33 days to respond and file a motion of appeal. I am currently out of status based on the denial, the motion of appeal will atleast keep me here for a fews extra weeks. I do plan to leave as I dont want to wait for another denial which may worsen my situation.

So based on this, do you think I should file this motion and leave before feb 15th. I need sometime to clean up a few issues, plus I have a pending lawsuit/court case that I may not be able to attend.

[kabkaba]

Your out of status period begins from the day you stopped maintaining H1 status (stopped working/getting paid as per LCA). If the change of status application receipt date falls after this out of status date, USCIS cannot approve any change of status. They may ignore some gap and approve, but according to what I see they have decided not to use that discretion. You may challenge/appeal that, but a pending appeal does not grant you any legal period of stay or status. It is also possible that USCIS thinks the reason you asked for B2 status is not allowable under B2 status.

The 180 day limit comes into picture only for illegal stay and not out of status period. Has your I-94 expired? That will make you illegal. Even then, the out of status period does have an impact on your future applications.

[deenix]

My I94 is from Nov 2010 - Sept 2013. My h1b was still valid as of the time I applied for the B2. So would that still mean I am out of status. In my case, I was wrongfully terminated which is why I filed a law suit. I cannot be out of status If I was terminated for asking for my money based on labor law. In addition, I did not mention I received an RFE where I provided extra information. If I was out of status, I am not sure I would have been issued an RFE (probably just a straight denial).

In any case I agree that my reason may not warrant B2 status. But, they asked for extra evidence which is puzzling in itself. This has been been really helpful.
I will have to seek more legal advice to determine my cut-off if I have to leave the country:

Is it on or before the 33 days to appeal is over? How long do you think I have based on this basic information.

Can u explain the difference between illegal stay and out of status? I'm not sure what the implications are for my case.

[kabkaba]

What did the RFE ask for exactly? They may have been ascertaining the date you went out of status to see if there is any gap between that date and filing receipt date and if there are any reasons why that gap is justified.

You cannot appeal after the stated limit. But you can file a motion to reopen. That does not give you any permitted duration of stay though.

The employer is legally required to pay for your ticket to home country if they terminate you earlier.

[deenix]

**** **** Your application lacks documentation regarding eligibility requirements to establish that you qualify for the benefit you are
requesting. In order to process your application, additional evidence is needed.

Please submit a statement indicating Why and when you need to be present in the United States to pursue your lawsuit.

Regulations require that a visitor for business (B-1) or pleasure (B-2) must establish that he or she has a residence
abroad which he or she has no intention of abandoning. Submit documentation to establish that you have a foreign
residence where you intend to reside at the expiration of your B-1 or B-2 visa. Such documentary evidence includes
current telephone bills, current utility bills current mortgage statements, current rental agreements, current rent
receipts, etc. Please submit documentary evidence that you have the ability to financially maintain yourself throughout the duration of
your stay. Submit a statement in which you describe your intention Concerning departure from the United States.
Submit evidence to establish that you have made arrangements to depart the United States upon completion of your
temporary stay. Such evidence includes a airline ticket or other transportation ticket or evidence to show that you have
the funds necessary to secure your departure from the United States. **** **** **** *

This is the RFE. I'm not sure they are concerned about my status. I have never had issue with status since i got here in 2002 (there is nothing on my record..i moved from f1-ead-h1b, that is it). You may be right again in saying that the lawsuit does not warrant a B2. I provided all the evidence, but the plane ticket and court date. My employer did not get a plane ticket (part of the reasons I am filing suit to get my money) and I provided financial support with a substantial amount. I also provided a letter from attorney filing suit. So based on all this:

1/ They require more information (i.e buy a plane ticket, court date etc.)
2/ They still wont grant me the B2 based on the reason (filing a lawsuit which does not qualify)
3/ It was purely discretion and I dealt with the wrong person (the vague reason for denial leads me to believe this was the reason)

My question to you now is, do you think i'm digging myself into a deeper hole by staying any longer? Will this appeal still grant me some sought of 'legality' after which I make plans to leave? If I file this appeal and before a decision is made, can I still file H1B with a prospective employer (yes/no/maybe)? I know people that have been approved for B2 -H1B, but my circumstance is little different (this is just a thought as I am exploring all options).