Out of status on H1B for 5 months - need to apply for visitors visa now

[lsun0726 1]

Hi there, was hoping to get some opinions and advice here in regards to my situation -

I was let go from my H1B job in 08/2013 and overstayed for 5 months to look for a new job (had been in the US for 8 years starting from college, so I wasn't just going to leave my 8 years of life there behind and had no desire to look for jobs back home in China). I went on a number of interviews during those 5 months but wasn't able to secure another job in time, so I left the US in 01/2014. Though, my I-94 is still valid and does not expire until 03/2014, my knowledge is that I violated my visa terms by being out of status for 5 months, however, I did not accumulate any "unlawful presence" as period of unlawful presence is counted based on the date indicated on the I-94. In either case, my overstay was under 180 days so it shouldn't trigger a 3 yr ban.

Now I'm back in my home country continue to apply for jobs back in the US and will soon (in the next month or so) need to apply for a visitors visa to return to NY to attend interviews. My questions are:

- Is attending job interviews (pre-arranged interviews with specific companies on specific dates, not just general "job hunt") a permitted reason to apply for a B1/2 visa? (My research seems to suggest so, as it is different from "seeking to actually ENGAGE in employment". And I hope the Consulate will see from my resume that all my past employers are large investment banks that absolutely require you to have a work visa to begin employment, so it shows that I will apply for appropriate work visa if I do get job offers and not engage in unauthorized employment while on B visa which I only intend to attend job interviews with). Though, how do I go about proving to the consulate officer that I will return home at the end of visitors visa even if I do not end up getting the job offer.

- If the above is a legitamate reason for applying for a visitors visa, is it most likely that my visa will be denied due to my previous H1B overstay + applying for a visitors visa to re-enter the country so soon after + my reason for the visa is to attend interviews? I understand that I'll have a hard time being questioned about my overstay, but I am hoping that the consulate officer will be somewhat understanding in evaluating a common case like this from a reasonable perspective - I lost my job and intended to find a new one right away and how else would I do that not being in the country? Or do I have a better chance with saying that I needed the 5 months to pack up my life there (instead of looking for a new job), then now I'm back home, I'm starting to hear from prospective employers and want to give it another try and go attend the interviews? Does anyone know of any similar cases being approved in the past? I mean I know it all depends on the consulate officer and how I frame the situation, but do I have ANY positive chance here?

If I do get denied for the visa because of my previous violation of the H1B, since the overstay won't change, and my case doesn't trigger any 3 yr ban, what do I have to do to get a visa approval when I re-apply again? Will I be required to wait for a specific amount of time after I can re-apply? What difference does it make if I try and re-apply a week after or 6 months after, as my circumstances won't change.

- Given my circumstances, getting a visitors visa right now is the only way for me to return to the US to attend interviews and get a job. If attending interview isn't the best reason to use in my case, are there better reasons I should use in my application? For example, my college 5yr reunion is coming up in May which I intend to attend, or wrapping things up back in NY as I still have my apt and my belongings there (truth) because I plan on finding a job back home (which would be a lie), would any of these be a better reason to use in getting a visa to attend interviews?

Any advice is much appreciated and thanks in advance!!

[aaron2020 11,651]

Seriously???

You still have a NY apartment and you plan to lie about a job in China to obtain a US visitor visa. You want to commit immigration fraud and you would like help? You want us to help you violate US laws?

Edited February 20, 2014 by aaron2020

[JohnR! 5,495]

First off, lying to the IO at the consulate is a very bad idea. These individuals are trained to detect lies and all they need is a suspicion and they may deny your visa. On the other hand I believe that if you apply for a tourist visa and declare your intention of interviewing for a job you may be denied it. I also believe you will be denied if you tell them you need to warp things up here, for technically you should have done so before you left the US.

In regards to your H1B, despite the validity on the I-94, your visa became void the moment your employer let you go, so indeed you accumulated unlawful presence in the US by not returning home earlier. Your predicament notwithstanding, even without a ban you may still have trouble getting a tourist visa.

Your best bet is that any potential employers here in the US apply for another H1B visa, in which case you would enter the country to work. My suggestion is that you communicate with your potential employers and have your face-to-face interview using Facetime or Skype. Many companies do just that for overseas applicants and save them the money and time involved with flying someone stateside for the interview.

Good luck!

[lsun0726 1]

Oh hey Mr. Police, thanks for your attention to my post but you may want to read my question again before you post your passionate character questioning comments. What I meant is to state that I need to wrap up things with my current apt in NY and then come back home to look for jobs in my home country. I'm not lying about "a job in China" as I don't have one, I'm saying that the intent to use a visitors visa to return to US to wrap things up and plan to come back after to look for a job in my home country is a legitmate reason.

No one is trying to commit any fraud here ...if you don't have any constructive advice, keep your comments to yourself...seriously

[JohnR! 5,495]

Oh hey Mr. Police, thanks for your attention to my post but you may want to read my question again before you post your passionate character questioning comments. What I meant is to state that I need to wrap up things with my current apt in NY and then come back home to look for jobs in my home country. I'm not lying about "a job in China" as I don't have one, I'm saying that the intent to use a visitors visa to return to US to wrap things up and plan to come back after to look for a job in my home country is a legitmate reason.

No one is trying to commit any fraud here ...if you don't have any constructive advice, keep your comments to yourself...seriously

Even so, in the eyes of immigration this is something you should have done before returning home and it will certainly be a red flag.

[lsun0726 1]

(my comments above is for the gentleman named aaron2020) - To Gegel, appreciate your advice, what you said about doing the interview over the internet is what I've been thinking also and will try and work that out with the employers and hopefully they are okay with it!

[aaron2020 11,651]

Oh hey Mr. Police, thanks for your attention to my post but you may want to read my question again before you post your passionate character questioning comments. What I meant is to state that I need to wrap up things with my current apt in NY and then come back home to look for jobs in my home country. I'm not lying about "a job in China" as I don't have one, I'm saying that the intent to use a visitors visa to return to US to wrap things up and plan to come back after to look for a job in my home country is a legitmate reason.

No one is trying to commit any fraud here ...if you don't have any constructive advice, keep your comments to yourself...seriously

Oh sorry, you are going to lie that you intend to find a job in China and not that you have a job in China.

So lying to obtain a visa is not fraud? Please explain that.

[lsun0726 1]

Gegel - say the interview thing just isn't going to work out, in regards to my 5yr college reunion which I've planned on attending since last year (already booked hotels near the campus)..etc. what are the chances of them approving my visa, given my current circumstances (overstayed for 5 months and applying for a visitors visa shortly after and not having a job right now in my home country, even the visiting reason itself is legitmate). I guess I'll have to show "strong ties" to China huh? (which is something rather difficult for me to do given that I've lived in the US for the past 8 years)

[JohnR! 5,495]

Gegel - say the interview thing just isn't going to work out, in regards to my 5yr college reunion which I've planned on attending since last year (already booked hotels near the campus)..etc. what are the chances of them approving my visa, given my current circumstances (overstayed for 5 months and applying for a visitors visa shortly after and not having a job right now in my home country, even the visiting reason itself is legitmate). I guess I'll have to show "strong ties" to China huh? (which is something rather difficult for me to do given that I've lived in the US for the past 8 years)

Therein lies the rub. Regardless of the reason of the visit, the consulate will expect to see strong ties with China, which for obvious reasons you do not posses at this time. There is no hurt in trying but I would not pin my hopes high if I were you.

[lsun0726 1]

Yeah I hear you - one last question, in regards to your belief on the visa getting denied with visit intent being to attend pre-arranged job interviews, is that just a general case or you're saying so more specific to my situation with the H1B overstay..etc. (because there seems to be plenty cases with people successfully getting their visas with the same reason, but I guess again they were probably also able to show strong ties right?)

[JohnR! 5,495]

Yeah I hear you - one last question, in regards to your belief on the visa getting denied with visit intent being to attend pre-arranged job interviews, is that just a general case or you're saying so more specific to my situation with the H1B overstay..etc. (because there seems to be plenty cases with people successfully getting their visas with the same reason, but I guess again they were probably also able to show strong ties right?)

It is a general rule. A B1/B2 visa is not to be used for any reason other than business or tourism. However by 'business' they understand you entering the US to conduct business on behalf of an established company, entity or corporation, even if you are self-employed. A job interview does not fall into any of those categories in the eyes of the USCIS.

[lsun0726 1]

Also here's my innocent thought process, while it's true that I don't possess strong ties to China for obvious reasons, but there is zero benefit for me at this point to stay illegally in the US beyond the terms of my visitors visa if nothing pans out - I won't be able to engage in any employment (and they should be able to see from my past employment history that I wasn't just like waiting tables at restaurants or doing things in that nature which you can easily do without proper work authorization, and that the companies I've worked for so far are all top-notch the biggest names in finance, doesn't that somewhat paint a good picture of my future career goals/expectationsw..etc?). Like, what's the benefit for me to stay indefinitely beyond my visitors visa or violate the terms again (as I already am nearing a trigger for ban and any further accumulation will only do great harm to me)..unless I'm fine with remaining as an illegal immigrant there for the rest of my life and do shady things to make a living and why the hell would I want to do that? ---I know this isn't how the consulate sees it but it's just my innocent little mind trying to make sense of my story

[ashleyphilly 70]

Why didnt you adjust your status from H1B to B2 when you were in the U.S.? That's what I did when my H1B ended. Sure, I paid some unnecessary $500 fee for a lawyer to do that, but being out of status is not good. I agree with Gegel to try to have interviews from Skype.

[Boiler 45,322]

With a recent long overstay and no ties to China you do not seem an obvious candidate.

B would be an appropriate visa for interviews.

Do you have friends who could pack up your personal effects and send to you?

[belinda63 3,031]

During a non-immigrant interview the question is not why would I want to remain in the US it is Why would I return to my home country. Every non-immigrant is considered to be a potential immigrant (overstayer) and it is up to the person applying for the visa to prove they will not overstay. Assuming you have no ban, which I believe you do, what would make you want to return to your home country at the end of your tourist visit? You have no job, I assume no permanent home, no close friends, mo real ties there. In the US (where you have lived the past 8 years) you have an apartment, friends, etc. It is up to you to provide proof that will satisfy the CO that you will return home.