lipas1

I came to US in June 2000 under J-1 visa. I extended my stay and applied for B-2, then went to school and got F-1 student visa. In November 2002 I finally got H-1B work visa (for 3 years). All the time I stayed in US. I left US in November 2005, five days after date on my I-94 card, and went to my home country. Now after almost 6 months I realized how much I miss US and I would love to go back.
What would be the best option?
Should I apply for a green card thru employment, or quicker way would be thru H-1B first?
Is this going to be an issue that I overstayed five days, or I changed my status multiple times while I was in US?
The company where I used to work is growing, and has the most customers ever had, so they would sign my papers and hire me back.
If I apply for a new H-1B visa will I be counted toward cap quota (65,000 visas for this year) or this maybe an extension case because I am out of US for less than one year?
I now it looks a little bit tricky ;-) But I really want to come back, live and work in US. Please let me know if you need more info about my case, so we can blow the confusion.
I am looking forward to hear some opinion about my case.
Thanks
Paul

justice

Hello Mr.Lipas!

1.You can not apply for a H-1B visa or for a PERMANENT RESIDENCY BASED ON EMPLOYEMENT.

Your emploeyer has to petition for a Green Card for you.

The H-1B visa is a NON-Immigrant visa and it is much easier to obtain it than the Green Card.

Therefore I would recomend you to apply again for H-1B and the approach your company and say:"I have been forming the bold wish to become a permanent resident of USA with the perspective to be their's citizen in neer future!Could you,please,apply for me at CIS?"


2.It is possible that the Homeland Security banned you from entering USA by operation of law because you overstayed by 5 days.It does not matter how many days,you were obliged to leave USA exactly on the date which your I-94 states.

Recently the Homeland got very stringent and they do not make any compromises.

If you are from a VW Country they may consider your extended stay for tourist purposes but I will NOT rely on that.

3.Before you board a plane please,ask in the USA Embassy where you live if you are still admissable in USA.Tell them that you overstayed JUST by 5 days because you had an influenza or something else.At least they will tell you IF YOU WERE BANNED FROM USA FOR 3 years or more.

4.You will be counted towards the 65000cap for specialized professionals.

The six months limit is for those who applied for a GREEN CARD.

In order to give you more detailed information you have to give me more details.
rosie

lipas1

thanx for you help

I know that, when I say apply I mean "ask my employer or have him to apply"

What about the rule: over 180days overstay = 3years ban
over 1year overstay=10years ban
???

I found on www that H1B applicant can enter 10 days before the H1B starts. So I would think that there is some time for me at the end of my h1b let say to pack my stuff, clean up apartment etc.

justice

If your I-94 states that you have to leave on 31.March.2006...you must leave on this date...NO LATER!
You may leave 5 months later as the airlines do not check your immigration status and they are NOT customs officers.
The Enforcement of Immigration Laws are in the hands of the Immigration officers.
But your DEPERTURE IS REGISTERED IN US MIGRATION ARCHIVE and by operation of law..authomaticaly CIS may ban you from future entries if you oversaty your visa.
I am telling you this from my own experience.

lipas1

Can you tell me a little bit more about your experience (what do you do), and what was the case.

justice

I studied Law in Germany and in Berkeley,CA.
I worked also in The law Offices of Mark Freeman on 220 La Cienega Blbd. in Beverly Hills,CA.

The case was as follow:

A British man who came to Los Angeles on B1/B2 was granted a stay for one month to attend some business meeting.
He overstayed the permission to remain in USA by three and something months.
Then he decided to travel to Sydney,Australia because he was thinking it makes sense to travel from LA to Sydney than to go back to London and fly from there.

He spent 18 days in Australia and on 11/19/2002 decided to return to Los Angeles as he was thinking that his B1/B2 is for 10 years and allowed him multiple entries.
When he came to LA ,the Immigration officers told him that his B1/B2 was canceled by operation of law(authomaticaly).

The reason,they said is that he stayed in USA longer than he was permited.After bweing kept for hours at the International Airport,he called the office of Mark Freeman(specialized in Immigration law) and asked for help.

With the help of attorney,he was given a VW for 90 days just because he is a UK citizen and does not need a tourist visa for USA.

It will be much faster and easier for you to obtain a H-1B but if you want to remain permanently in USA ,i will advice you to ask your employer to apply for a Green card for you in case you do not qualify for the family GC.

The GC gives you more rights than H-1B and you will be considered as a prospective citizen.

lipas1

Thanks.
I see what you meant. The Man overstayed his B visa over 3 months. I thought it was the case with overstayed few days only, like mine (5 days only).
From my experience, I applied for a change of status couple times and immigration never was on time ( B and F visa a few months delay) even the H1B premium process had also couple days delay. So you think that 5 days realy matter.


Are you familiar with GC thru employment. How long do I have to wait for approval (approx.), and when I can go to US?