Bar to U.S. PreventedPublished: Sep 10, 2008 Source: My Source
Our Malaysian client has a pending EB5 Employment Creation Immigrant Petition pending with USCIS, which if approved, will result in hundreds of new US jobs and introduce an immensely popular European sporting event to the US, which will generate enormous fan interest and revenues. Unfortunately, he has overstayed his H-1B Specialty Worker status. He applied for change of status which was denied.
If you overstay your status for 180 days and then leave the United States, you are barred for three years. If you overstay your status for one year or more and leave the United States, you are barred for 10 years. There is one exception. If you overstay your status for more than 180 days but less than one year and leave the United States under a grant of voluntary departure issued by an Immigration Judge, you are not barred at all.
The client’s prominent San Francisco attorney had attempted without success to have Immigration Court proceedings instituted so that the client could take advantage of the exception, because the client is not able to adjust his status in the United States to a lawful permanent resident when the immigrant visa petition is approved because he has been out of status for more than 180 days. The attorney referred the case to our office.
There was an additional twist because the client was already out of status for more than one year, which normally would have precluded him from taking advantage of the voluntary departure exception. However, because he timely filed a non-frivolous application for change of status prior to the expiration of his H-1B status, and had not engaged in unauthorized employment, the one year period of unlawful presence did not commence to run until the date of the decision denying his request for change of status or 120 days after his status expired, whichever first occurred. Less than one year had elapsed since the date of the decision which was dated earlier than 120 days after the expiration of his status.
We were successful in having Immigration Court proceedings instituted in Buffalo, New York, had the charging document immediately filed with the Court, and seven days later obtained voluntary departure from the Immigration Judge, all with the cooperation of the Buffalo Office of Chief Counsel, representing the Department of Homeland Security. The client can now depart the United States and not be inadmissible in the future as a result of his unlawful presence.