Immigration Site

How do you determine if unlawful presence has begun to accumulate when the most recent visa was an F1? The F1 was terminated from not meeting attendance requirements and reported by school to ISO in January 2010. Since then, a perm and H1 visa were denied and appeals are being filed for both. I understand that D/S on I-94 means that a judge must rule unlawful presence or other immigration benefits are denied to start the clock. Would unlawful time have started accumulating when the perm and H1 were denied, OR when school reported to ISO, OR not at all? We hope to continue the current appeals and do not want the unlawful time to reach a possible bar, since we have a severely disabled USC child who needs the care of both parents.


Aug 1997- Dec 2001 F1 Recruited from Canada by US University
April 2001-April 2002 OPT from school
May 2002-2009- H1B
April 2008- Perm app sent
June 2008- request for more info sent for perm.
Feb 24th 2009 H1B ended.
Feb 2009-Dec 2009 F1...Termination of F1 by School was Jan 2010.
June 2009- submittion of H1B extension due to a year of Perm in process.
July 2009-denied that H1B then appealed with more papers and explanation, then denied again.
2010 submitted H1B for Marketing analyst- denied then appealed, denied again
June 2010 submitted H1B for VP of Marketing and Sales due to increased business and a need for this position. denied and about to be appealed soon.
July 2010 Perm denied, going to file MTR to reopen Perm app.
Considering marriage to USC...in 5 year relationship with one child

The unlawful presence would have started with the H1B denial, unless they sent something before that to indicate a formal finding of unlawful presence.

Why do you expect to win the appeal of the H1B denial? You already used up your 6 years of H1B, and you dont have an active labor certification, I-140, or I-485 anymore, and you havent spent a year outside the US to reset your H1B clock.

Attorney explained that a labor certification will still be considered “pending” while the denial or revocation of the labor certification application may be appealed, or while the appeal is actually pending, for the purposes of determining if an H-1B nonimmigrant is eligible for extension of stay.

If you have an attorney, why are you posting to a forum? Your attorney has the specifics of your particular situation.

The US government does not care that you have a USC child until the child is 21 and can sponsor you. Nothing prevents both parents from leaving the US with the child since nothing in US law prevents a USC from residing anywhere else in the world.