H1b visa interview after B-2 denial

[pt2015]

Hello,

I have a visa interview in New Delhi embassy for a cap-exempt H1b in 3 days and have a few questions about the same.

I am a physician and have been in US for last several years on F1, J1 exchange visitor and H1B status. I have successfully completed a 3 years J1 waiver and have an approved I-140 petition with a priority date in 2012. About 4 months ago, I had an unexpected loss of employment while on H1b status for 3+ years. I applied for a I-539 change of status (COS) to B-2 visa within a day of loss of employment requesting that I need to dispose of my personal belongings/car, visit friends and resolve some legal matters that warranted a compulsory physical appearance in a US court 2 months later. I mentioned in my application about my intent to return to my home country eventually in 3-4 months after taking care of these personal and legal matters.

Fortunately, I was able to secure another employment in this duration and my new employer filed for a H1b via premium processing. USCIS initially showed that they will wait for a decision on my I-539 COS before approving I-129. Subsequently, my request for COS to B-2 got denied on the basis that a pending I-129 was in direct violation of 'business or pleasure' intent of a B-2 visa and the purpose of this visa is not for securing another employment. I left US 3 days after the denial notice.

Now, USCIS has approved my I-129 for H1b and I have scheduled a visa interview with New Delhi embassy for visa stamping. I'm preparing to answers questions related to B-2 denial.

1). Would you advise to be cautious about anything particular in my case?

2). With a denied COS application, have I incurred any unlawful presence in US? If yes, that would be about 4 months since I lost my employment and left US 3 days after the denial notice. I was reading somewhere about the 3 years/10 years ban rule for unlawful presence in US. 3 years for unlawful stays over 6 months and 10 years for more than 1 year. No ban on re-entry if unlawful presence was less than 6 months. Is that correct?

3). What documents I should carry along for the visa interview? I'm thinking about carrying the complete H1b application filed by my employer, US bank accounts info and court's hearing and decision notice to support the requirement for a mandatory appearance during my stay in US.

I would highly appreciate your responses.

[inadmissible]

1) My advice would be to completely forthcoming and honest.

2) Unlawful presence bans are related to unlawful presence - of which being out of status is not. I presume you did not overstay the I-94 authorized duration of stay. As such, your unlawful presence accrued starting from the date of your COS denial notice.

3) Do your legal issues render you inadmissible? You should bring a certified copy of your arrest records.

[pt2015]

1) My advice would be to completely forthcoming and honest.

2) Unlawful presence bans are related to unlawful presence - of which being out of status is not. I presume you did not overstay the I-94 authorized duration of stay. As such, your unlawful presence accrued starting from the date of your COS denial notice.

3) Do your legal issues render you inadmissible? You should bring a certified copy of your arrest records.

Thank you for your reply.

I did not overstay the I-94 authorized duration of stay. My I-94 showed a duration of stay until expiration of my previous H1B (i.e. in 2017); however, it is my understanding that this I-94 was voided as soon as my employment ended.

My legal issues were pretty minimal. I had a misdemeanor charge, but after court appearance it was changed to a 'petty misdemeanor (PMD)' which is not considered a 'crime' and is equivalent to a 'minor traffic violation' in the state I reside in. There was no arrest and I had just received a citation (<$200), that I paid off after being charged for PMD. I do not have certified copies of court orders, but can carry the photocopies of citation and the court order for hearing and final decision. Would that be sufficient? Given that my visa interview is in 3 days, I won't be able to get certified copies from the US court at this time.

[inadmissible]

Consular officers can be difficult if they want to be. They can send you home and have you return with certified extracts of records. I would not lose sleep about it, as long as does not involve a controlled substance you will probably be fine.

[pt2015]

I interviewed for H1b today. I had a 'petty misdemeanor' charge for lending my driver's license to another individual to gain access to a liquor serving facility in the beginning to this year. Neither of us consumed alcohol. The original charges were 'misdemeanor' but it was amended to 'petty misdemeanor' after I pleaded guilty. The VO asked 'why did you lend your DL to other individual?' and I explained. After that, he said your visa is approved. We'll send you a SMS/e-mail when your passport is ready to be picked up.

Any idea about how long it will take to get the passport back?

Thanks.