A few years ago, my employer filed an H1B extension for me. My I-94 expired shortly after the petition was filed. Then, the USCIS denied the petition and I left the U.S. as quickly as I could (2 or 3 days after I learned of the denial). I am now applying for a B-1/B-2 visa. Do I have to disclose this info on my DS-160, or was my brief stay following the denial covered by a grace period?

Answer

Generally speaking, if an H1B extension is timely filed, the H1B worker may remain in the U.S. for as long as the petition remains pending. If the petition is denied, the individual normally is eligible a grace period of up to 60 days or the I-94 expiration date, whichever comes first.

Unfortunately, in cases where the individual’s I-94 has already expired by the time the USCIS denies an H1B extension, that person typically begins to accrue unlawful presence immediately following the issuance of the denial. In that situation, this unlawful presence must be disclosed on the DS-160. Fortunately, a brief period of unlawful presence does not normally prevent an officer from issuing a visa. More details on unlawful presence can be found in the 19.Apr.2022 MurthyDotCom NewsBrief, Differences Between: Lawful Status, Period of Authorized Stay, & Unlawful Presence. (25.May.2022)

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