H1B denied - Have you ever been unlawfully present - DS 160 question? left US after 12 days

Hi Anil,
I have question regarding the unlawfully present, overstayed in USA after petition denied.

As per denial notice, my petition denied on 3rd August 2018 but I left the country on 15th August 2018 after I received official communication from immigration team that my petition got denied.

In this case, will USCIS consider my overstay or unlawful presence for 12 day?

My immigration team is saying this is not unlawful presence or overstay so I should answer No to "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration .official or otherwise violated the terms of a U.S. visa?” in DS160.

let me know your opinion.

When did your i94 expire? Before the denial or after denial?

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My I94 expired on 31st Dec 2017 before denial, I got denial on my filled H1B extension.

As per my understanding, I could stay 240 days even if my petition expired i.e. 31st Dec 2017 when extension is process.
So, I have not crossed 240 days timeline but before that I received the denial on the extension.

Answer YES to DS 160 question

You should answer “YES” to "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?” in DS160.

Unlawful presence starts on H1B denial

Even a single day stay after your H1B denial and after your i94 has already expired is counted as “Unlawful presence”.

You Unlawful presence started on 4th Aug 2018 and continued until you left USA on 15th Aug, 2018.

No issue if you mention the Truth in DS 160

It is okay to mention this Unlawful presence time as it is a genuine time spent wrapping up your stuff to leave USA. It will not affect your application.

Chances of H1B visa denial are high if you hide Unlawful presence time

But, if you lie, then, your visa application can be denied based on “Mis-representation” of facts.

Thank you Anil.

I am planning to provide the below explanation for answer “Yes”

H-1B visa petition was filed for extension of stay in USA got denied by USCIS On August 03, 2018, USCIS denied my Form I-129, Petition for a Nonimmigrant Worker as per the denial notice received to my Employer (Petitioner office) by end of following week. I was not aware about the denial on petition until my employer communicated about the denial notice received to my filed petition.
Once I received the official communication about the denial notice then arrange to depart the U.S. within couple of days and left the country on 15 August 2018. I this case I overstayed for 12 days by considering my date of denial.

Please let me know what you think about the above explanation.

Sounds good to me. All the best.

Thank you again Anil.

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Hello, I am in same situation. What questions you faced in the interview about over stay.
Should I have to answer ‘YES’ for my dependent’s DS 160 as well?

Hi @bhum

You should always tell the truth and answer ‘YES’ if your dependent also overstayed with you.

US embassy has all the details about your stay in US and hence, there is no use of hiding anything on the DS160 form.

Hello, Please share your experience and what happened to your visa interview. thanks in advance.

Hi @bhum

Could you please share your experience during the visa interview process? Did they ask any questions related to overstay? Please share your experience so that others also can learn.

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I have got stamping successfully in July. I have not faced questions related to Overstay during visa stamping time and also at the time of port of entry.

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Thanks a lot @bhum. Your repsonse will help a lot of people

Hi Bhum, can you please confirm if you answered yes to the question. I am also going for stamping and need some help here.

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Can you please let me know if you gave selected as YES or NO for that option?

I’m planning to cos from h1b to b1/b2 and get my h1b extn approved in consular processing. When i exit from US my cos will be in pending state, does the time duration which i stay in US after i-94 expiry is considered as overstay? As far i know if i have filed I-539 cos and stay in US will be considered as authorized stay.

Please suggest.

Hi @mallik815 could you please confirm if you selected Yes or No?

Hi, i have my dropbox on 5/23/2022 and as per attorney i can select that option as NO, as i filed I-539 COS prior to expiry. I have not over stayed. When i checked with many other people with situation, they selected as NO and also got the visa approved.

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Thanks @mallik815 . So when you left the US, your I-539 was still in progress right? I’m not able to understand if my situation is same as yours. Could you please confirm? Below are my details -

Background - I was working in the US on H1B visa in 2019. My I-94 was valid until Apr 30, 2019. My employer applied for an H1B extension on Apr 22, 2019 so I continued working in the US. On Nov 14, 2019 USCIS denied my H1B extension petition. My lawyer received the decision notice a few days later. As my I-94 had already expired, I immediately made plans to exit US. I finally left on Nov 25, 2019 (11 days after my extension was denied).

Question - I’m now applying for an F1 visa. In DS-160, how should I answer this question- “Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa? (Yes/No)”

My dropbox appointment is on 1st June.

Yes, please mention it. You should be true in filling DS 160. They have system to verify it when you entered and exited. 11 days is not an issue.