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H1B Denied due to overstay 222g
I am the petitioner for a H1B recepient, we received an approved 797 saying we had gotten approval but because of overtsay of old B2 visa we had to get it issued abroad. We are now in Seoul South Korea,his home country. We have an appt with the US consulate here on Friday. He was in the country on overstay by 16 months but the reason for the overstay was because the fisrt attorney we hired did not file the paperwork for the H1B before the B2 expired although he was paid and the paperwork was submitted to him prior to the expiration of the B2. Will he be subject to the 10 yr bar.
We hired a new atorney to file the H1B as soon as we found out the first one dropped the ball. What should we do.. do we have a case to have 10 yr bar waived because it was atorneys fault.
User's Location:
Atlanta, Georgia, United States of America
Category:
Temporary Work Visa (H,L)
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| A. |
Dear Pastor Phil:
The unlawful presence bar analysis requires careful review of all the documents. Assuming the worst - that there is a 10-yr bar - a waiver can be obtained under 212d3. Authority to grant the waiver does NOT rest with Dept of State [conducting visa interview and making finding of ineligibility]. However, DOS Consular Office can recommend the waiver to the DHS entity that makes the decision. That entity may even have an office in Seoul, so that you can "walk the waiver across the hall." Best case scenario following refusal would be recommendation, waiver grant, then H-1B issuance. Be sure to have all your ducks lined up if you are going to try to shift the blame to Lawyer #1. Consuls are skeptical that aliens are unaware of their illegal status in general, and skeptical of Korean bona fides in particular. Honesty may be the best policy in terms of getting a favorable recommendation. Best of luck! Jim |
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James R. Mayock
Immigration Lawyer
Elliot & Mayock LLP
(415) 765-5111
www.emvisa.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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