F1-H1 Out of status Please help - Urgent

[iceman90201]

What is the name of your state? California

I have a situation.

My OPT denied: April 08, 2004
I filed a motion to reconsider the OPT denial decision: April 30, 2004
I got a job and filed my H-1B: July 30, 2004
My motion to reconsider was denied: August 11, 2004
My H-1B got approved, but change of status was denied: Sept 09, 2004

They told me that I'll have to go to India to get a new visa, even though my H-1B petition was approved. And, that since my OPT was denied on April 08, 2004 my student visa "expired" on Feb 16, 2004 - which is 60 days after my graduation. This means, I've been "unlawfully staying" since Feb 16 which is 7 months. (more than 180-days and qualifying me for a 3-year ban... right? )

What are my chances once I go to India that they'll approve my visa, knowing that I've been here all the time... One important point is that, even though I was here all that time, I always had some or the other paperwork in progress for me. Would'nt that help?

Thanks a lot you guys. People, I really need your input...Please help.

 

[DEREKCH]

"And, that since my OPT was denied on April 08, 2004 my student visa "expired" on Feb 16, 2004 - which is 60 days after my graduation. This means, I've been "unlawfully staying" since Feb 16 which is 7 months. "

Did INS specifically mention you are unlawfully present since Feb 16 ?

Because if you are a F1 student - your unlawful presence starts from the day the your application is denied. In your case that date probably is April 08. Which means, as on Sep 14, you have accrued ~ 5 months of unlawful presence - which is less than 180 days.

If you leave before 180 days of the first denial you could avoid the 3/10 year bar.

I am in a similar situation - but my visa is F2.