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  • F1 Visa violation or unlawful presence

    I graduated from good state university and was on OPT cap gap visa. I have applied for H1b 2014 and it was denied for not showing employer-employee relationship on 3 July, 2014

    Regarding change of status, as my project started on 24 feb 2014 they asked to provide the proof of work prior to that date for month of February along with pay stubs or w2's covering OPT period. I was working with same project since dec 2013 but new contract has been signed in feb. But my attorney didn't send the previous SOW covering whole feb and also didn't send pay slip for March 2014. Only w2 for 2012 and 2013 are sent during which I was working except for two months with the same employer.

    They denied my change of status mentioning below reason

    Denial Notice:
    Title 8, Code of Federal Regulations, 248.1 (a) provides that only an alien who continues to maintain nonimmigrant status may apply for a change of status

    As discussed above, you did not provide evidence documenting the beneficiary's OPT employment immediately prior to the filing of the instant petition. The evidence does not demonstrate that the beneficiary was continuing to maintain his F-1 nonimmigrant status at the time you filed this petition.

    The change of status is denied pursuant to 8 CFR 248.1 (a).

    Since I was on cap gap visa, I had to resign on the same day h1b was denied. And my attorney didn't file the MTR since no new documents can be attained. But my concern is with COS since I had all the required documents to prove that I was employed all through my OPT period including w2, i20, pay stubs, time sheets, sow, etc. But attorney mentioned we can't file MTR for COS seperately and advised to continue with F1 status since I'd all the proof by enrolling in a university.

    But I didn't want to join the university for the sake of maintaining the status. I received the denial notice from my employer on 25 July and exited the US on 30 July in order not to risk any damage in the future.

    Following are my questions based on my situation.

    1. Did I acquire any unlawful presence since I exited 28 days after the denial notice. Per USCIS website, cap gap visa has 60 day grace period unless they determined there is a visa violation and to depart immediately without mentioning any time frame.

    2. Is 28 days already accrued towards 3 year ban.

    3. Is it considered to be a visa violation.

    4. I exited the US using my new passport that I acquired while I was in US. So, how do they note the exit date and how to link my old and new passport details. I am not able to see any exit record in online I94 system using my new passport number. At what point they check if I overstayed my visa and what steps I need to take to ensure I will not have any problems in future.

    5. What are the chances if I file H1b next year, taking into the fact that I have all the documents w.r.t. my F1 status.

    Please provide your replies, share your experiences and suggest what additional steps to be taken now to avoid any issues in the future.
    Last edited by Sunny84; 08-03-2014, 10:15 PM.

  • #2
    Hello, Sunny.

    Such instances - being unable to maintain status - take place often. As you did not continue to stay in the country, you demonstrated that your intention was not to illegally stay in US.

    Whenever you apply for a US visa next time, you will see questions - i) did you ever overstay your visa in US, ii) was your visa petition ever denied - along with explanation of circumstances. During the interview, you will have to explain your scenario to the Visa Officer. Further, they do track exit and entry into US using people's passport numbers. They will be able to find out when you left the country. They anyway ask for details of stay in US, and passport numbers when someone applies for a US visa. So, you will also be providing all the information when you apply for a visa next time.

    As you left the country upon receiving the notice, i do not think the ban applies to you. When questioned about this, you could always show the denial notice and date and your exit date. I do not think you are banned from entering USA.

    I hope this helps. Personal opinion.

    Cheers,

    Originally posted by Sunny84 View Post
    I graduated from good state university and was on OPT cap gap visa. I have applied for H1b 2014 and it was denied for not showing employer-employee relationship on 3 July, 2014

    Regarding change of status, as my project started on 24 feb 2014 they asked to provide the proof of work prior to that date for month of February along with pay stubs or w2's covering OPT period. I was working with same project since dec 2013 but new contract has been signed in feb. But my attorney didn't send the previous SOW covering whole feb and also didn't send pay slip for March 2014. Only w2 for 2012 and 2013 are sent during which I was working except for two months with the same employer.

    They denied my change of status mentioning below reason

    Denial Notice:
    Title 8, Code of Federal Regulations, 248.1 (a) provides that only an alien who continues to maintain nonimmigrant status may apply for a change of status

    As discussed above, you did not provide evidence documenting the beneficiary's OPT employment immediately prior to the filing of the instant petition. The evidence does not demonstrate that the beneficiary was continuing to maintain his F-1 nonimmigrant status at the time you filed this petition.

    The change of status is denied pursuant to 8 CFR 248.1 (a).

    Since I was on cap gap visa, I had to resign on the same day h1b was denied. And my attorney didn't file the MTR since no new documents can be attained. But my concern is with COS since I had all the required documents to prove that I was employed all through my OPT period including w2, i20, pay stubs, time sheets, sow, etc. But attorney mentioned we can't file MTR for COS seperately and advised to continue with F1 status since I'd all the proof by enrolling in a university.

    But I didn't want to join the university for the sake of maintaining the status. I received the denial notice from my employer on 25 July and exited the US on 30 July in order not to risk any damage in the future.

    Following are my questions based on my situation.

    1. Did I acquire any unlawful presence since I exited 28 days after the denial notice. Per USCIS website, cap gap visa has 60 day grace period unless they determined there is a visa violation and to depart immediately without mentioning any time frame.

    2. Is 28 days already accrued towards 3 year ban.

    3. Is it considered to be a visa violation.

    4. I exited the US using my new passport that I acquired while I was in US. So, how do they note the exit date and how to link my old and new passport details. I am not able to see any exit record in online I94 system using my new passport number. At what point they check if I overstayed my visa and what steps I need to take to ensure I will not have any problems in future.

    5. What are the chances if I file H1b next year, taking into the fact that I have all the documents w.r.t. my F1 status.

    Please provide your replies, share your experiences and suggest what additional steps to be taken now to avoid any issues in the future.
    These are my personal thoughts. I am not a professional.

    Wishing you luck.

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