Out of Status - 3 year Ban or Not? Please Help

[akund001]

One of my friend is in this situation, experts, attorneys please help..

- Was working full-time on h1B was laid off suddenly on August 20 2011.

- He was in US and did not find any new job immediately and found new job in January 2012.

- New H1B petition for H1B transfer applied in March and USCIS receipt date is January 23, 2012 in PP.

- He received H1B approval without COS i.e. no I-94 card attached on March 29, 2012. In the mean time from Jan 23 until approval he is in USA waiting for H1b approval to commence working for employer.

- Hence, he is planning to leave USA immediately but worried about his out of status situation.

So the question is will he be banned for 3 years because of being out of status or not?

How are out of status, illegal period calculated, is it calculated from August 20, 2011 until H1B approval notice date March 29, 2012? i.e. for period of more than 6 months - in which case he will be banned for 3 years?

OR

will he be considered out of status only from August 20, 2011 to Jan 23 2012? In this case he is out of status for only 5 months 3 days and he will not be subjected to 3-year ban?

Please reply...

Thanks,

Cuser2011

[akund001]

more information missing, original H1B before layoff and I-94 was valid until May 2012.

Experts reply..

[Attorney_10]

Generally, unlawful presence begins to accrue only after the date on one's I-94 card expires or if there is a formal determination by USCIS or an immigration judge that one is accruing unlawful presence. Your friend should schedule a consultation with a qualified immigration attorney to discuss the specific facts of his case ASAP prior to departing the U.S. to ensure that departing the U.S. will not trigger any bars to re-entry and to determine what, if any, other options are available to your friend.