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I have a question on US Non-immigrant DS-160 form. A new…

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I have a question on US Non-immigrant DS-160 form

Lawyer's Assistant: Have you filed any paperwork with the USCIS (U.S. Citizenship and Immigration Services) yet?

Yes, a new petition with consular notification has been approved

Lawyer's Assistant: Have you talked to a lawyer yet?

No

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

In DS-160 there is a question on previous overstay:“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 my previous visit, I stayed for 21 days after denial of visa extension. However, when I contacted US Customs and Border protection, they told I have 30 days to depart. Should I answer this as "No" based
on CBP email or should I answer Yes? If yes, how should I explain?

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Answered in 1 hour by:
3/9/2018
Expert James
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In what status were you before you overstayed the denial? In other words, what status were you in? What status did you request? And do you have written confirmation that you had 30 days to depart? Was this information provided in your denial notice as well?

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Customer reply replied 1 month ago
Hi James, I was in H1B status and now currently I am requesting for the same status. The written confirmation is in form of email from CBP Info Center. The USCIS denial notice stated : " leave US immediately". Since there was no end date/ day mentioned, I contacted CBP via email.

OK, and when had your I-94 expired?

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Customer reply replied 1 month ago
I-94 expired in March 2016, employer filed an extension before that and the extension got denied in May 2016 and I left 21 days after the date of denial

Sorry for the long delay. I was in transit. Apologies for any inconvenience. Thank you for your patience. Your answer is below. When you get your answers, you will be asked to give a rating - 4 or 5 stars are appreciated. This is important because this is how I credit for doing my job. Don't worry, you can still ask related follow-up questions even after you've given a rating. Thank you!

ANSWER: Technically, if you are in the US past the expiration date of your I-94, then you are out of status. That is true even if you filed the extension before the expiration of your I-94. But in that case, you are not accruing unlawful presence until you have received the denial.

In this case, unfortunately, the answer is still yes. You were still in a period of stay authorized by the attorney general while you were awaiting the processing of the H1B, but you wee out of status. And on the day you received the denial, you were accruing unlawful presence. Yes, an officer said it was ok to stay up to 30 days. But that does not mean there was not an immigration violation and I would not depend on that to avoid answering YES, and then have to explain it all or try to fix it later. I think the best way to go about it is to be up front and provide all of the explanation and documentation, so that they know exactly what happened and why you overstayed. Don't worry—you will have an opportunity to explain everything, and the officer will see it and have a record of this information as well.

Although I know that is probably not what you wanted to hear, I hope that answers your questions.

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