Please Help ... H1-B Petiton Question

[lewkhast]

I have not familiar with H1-B Petitions and I am inquiring a question in behalf of my cousin .

My cousin came here in the U.S. back in April 2010 under Tourist Visa valid to stay for 6 mos until October 2010. 3 months later, he was able to find an employer who would be willing to sponsor him for H1-B Visa as his work background is in the I.T. Field. Apparently, his H1-B petition was already filed last August (he wasn't given any Receipt #) and was told that it would take about 3 to 4 months for processing.

He mentioned his concern that his I-94 (under Tourist Visa) would be expiring on October 2010 and he ask if he need to file an extension for another 6 mos. He was told that it would be in conflict on the filing of his H1-B Petition and he was advised NOT to file any extention request.

My question is, now that this month of November 2010 he's already over-stayed - by the time his H1-B Petition would be approved, would he still be able to acquire or benefit the H1-B Visa even if he is already out of status? His application was filed while he was still in-status (August 2010) so would he still qualified, if approved, to benefit the H1-B Visa Petition even if he's already over-stayed? (and I'm sure he's out-of-status now.)

Thank you for anyone who can post their opinion and we would greatly appreciate it.

[shervin143]

A COS from B1/B2 to H1B is never advisable. The chances of a successful COS is very less and even if the COSgets approved, there will be a lot of questions when he goes for the visa interview as it was very clear that his intention of travelling on B1/B2 was to find a job.

Overstaying beyond the I-94 expiry date makes his stay illegal and it could cause more issues. He should leave the country immediately. Upon receiving the H1B approval, he should get it stamped and re-enter U.S. The more the illegal stay, he would invite more trouble.

[lewkhast]

Thank you for the quick response. I clearly understood what you mean and actually that exactly my thoughts areregarding my cousin's issue. But since his stay is already lapse/expired, there's no turning back now as I'm sure he's already under the 10 yr ban once he goes out of the country.

So does that mean now that even if his H1-B petition gets approved, he won't be eligible as he is already out of status even if the petition was filed BEFORE his valid stay expired?

A COS from B1/B2 to H1B is never advisable. The chances of a successful COS is very less and even if the COSgets approved, there will be a lot of questions when he goes for the visa interview as it was very clear that his intention of travelling on B1/B2 was to find a job.

Overstaying beyond the I-94 expiry date makes his stay illegal and it could cause more issues. He should leave the country immediately. Upon receiving the H1B approval, he should get it stamped and re-enter U.S. The more the illegal stay, he would invite more trouble.

[shervin143]

The 10 year automatic ban will be imposed only if he stays illegally for more than 365 days. For staying illegally more than 6 months, he could get upto 3 year ban. It is stil advisable to leave the country immediately instead of spoiling his future chances.

If the H1B gets approved with the COS, then he can start working for the H1B employer. However, he might have to answer a llt of questions when he goes for visa interview the next time or at the POE for overstaying.

1) When the current I-94 has already expired, a COS is not possible. Meaning, the H1B approval might come without an attached I-94 (Consular Process).

2) Also, the chances of the petition getting approved as a COS is very slim when you apply a COS from B1/B2 to H1B. Most probably it might get approved as a consular process. Which means, he cannot work until get his visa stamped and re-enter.