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I have been overstayed 2 months now. Today comp file H1B petition. Am I legal to stay in US until decision made?

Asked over 2 years ago - Texas

The company file regular processing/ Consular.
My questions:

1. Can I continue stay in US until decision of H1 petition made ?

2. Since i am overstayed 2 months already, can I still go to third country near US border (Mex Canada) for H1 stamping ? or have to be in my home country ? I can't stand the long flight 20 hours to my home country, I almost passed out during the flight.

Many thanks for your advise,

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Attorney answers (1)

Kevin Lawrence Dixler

Reputation Level 19

Answered over 2 years ago. Immigration Attorney in Chicago, IL.

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1. No. You stay in the U.S. at the risk of possible H1-b1 visa stamp denial in your home country. You cannot change status unless the USCIS believes that there is a proven justified reason for the delay. You should not depend upon USCIS making a mistake and approving the Change of Status, if requested. Your H1-b1 visa may be delayed or denied, where a consular official questions the USCIS decision.

2. No. The law prevents overstays from getting visas in third countries unless their country of citizenship lacks U.S. Consular processing. You wil have to return to your home country for H1-b1 visa stamp processing. You may need to get help from a qualified health care professional if you cannot travel; this is no excuse.

The above is general information not legal advice.

American Immigration Lawyers Assn

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