Now, they would be out of status from the date that a final determination is made.
If the appeal is denied, any future H-1Bs will look at any illegal time if any. If you leave soon after the appeal is denied, you should not have a big problem trying to get another H-1B from outside the U.S. as long as you meet all the qualifications.
You just said it yourself, IF the appeal is denied. So yes, you would be out of status IF the appeal is denied. You have to hope that the appeal is approved. If not, you are deemed out of status.
And yes, this is correct. IF the appeal is lost, the out of status time accrues from the time the H-1B expired. So as of now, you already have more than 180 days out of status IF the appeal is denied. You would have had to leave before March 30, 2008. Once you pass September 30, 2008, you will have accrued more than a year out of status and will activate the 10 year bar.
So as of now, you are already in trouble. The decision that you have to make is if you want to risk the 10 year bar or not.
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