H4 visa - DS160 question.

[champswc2011]

The following question is about "Have you ever been unlawfully present,overstayed the amount of time granted by an immigration official 

or otherwise voilated the terms of a US visa?" in DS 160 form

 

The following situation happened to friend of a friend and he asked me to post this.

 

He was on H1B and got laid off on Oct-22-2013 without notice with termination Date being Oct 22nd. The company offered Severance Check for 2 next months(until Dec 22). He stated his intention of going back to India and his company booked the flight ticket for Nov 2 and he left on Nov 2. H1B petition is not revoked as of Nov-2-2013.

 

BTW, he did not have H1B visa stamped at the time of lay-off.

 

 

He said that he read this article in Murthy.com http://www.murthy.com/2012/11/01/bona-fide-termination-requirement-for-h1b-employee/

 

 

He is wondering what to answer to the above question in case if he want to apply for H4 visa in future?

[jairichi]

 

The following question is about "Have you ever been unlawfully present,overstayed the amount of time granted by an immigration official 

or otherwise voilated the terms of a US visa?" in DS 160 form

 

The following situation happened to friend of a friend and he asked me to post this.

 

He was on H1B and got laid off on Oct-22-2013 without notice with termination Date being Oct 22nd. The company offered Severance Check for 2 next months(until Dec 22). He stated his intention of going back to India and his company booked the flight ticket for Nov 2 and he left on Nov 2. H1B petition is not revoked as of Nov-2-2013.

 

BTW, he did not have H1B visa stamped at the time of lay-off.

 

 

He said that he read this article in Murthy.com http://www.murthy.com/2012/11/01/bona-fide-termination-requirement-for-h1b-employee/

 

 

He is wondering what to answer to the above question in case if he want to apply for H4 visa in future?

 

His answer has to be NO

[champswc2011]

Thanks for the prompt response.

 

Is he not of out-of-status from Oct 22 to Nov 2 ?

 

Does out of status has anything to do with "Have you ever been unlawfully present,overstayed the amount of time granted by an immigration official 

or otherwise voilated the terms of a US visa?"

[jairichi]

 

Thanks for the prompt response.

 

Is he not of out-of-status from Oct 22 to Nov 2 ?

 

Does out of status has anything to do with "Have you ever been unlawfully present,overstayed the amount of time granted by an immigration official 

or otherwise voilated the terms of a US visa?"

 

He is not as long as his payroll was run by that employer and H1B petition not revoked.

[champswc2011]

He is not as long as his payroll was run by that employer and H1B petition not revoked.

His termination date(Last Day of work) is Oct 22nd and the  paycheck was dated on Oct 22nd even for the next two months of pay. However, employer booked the ticket for Nov 2.

 

That's the reason he want to make sure. 

[jairichi]

His termination date(Last Day of work) is Oct 22nd and the  paycheck was dated on Oct 22nd even for the next two months of pay. However, employer booked the ticket for Nov 2.

 

That's the reason he want to make sure. 

Technically he was out of status. But, 10 days should not matter. He can justify to VO that it is a sudden termination from job and he needed few days to pack and leave.

[champswc2011]

Technically he was out of status. But, 10 days should not matter. He can justify to VO that it is a sudden termination from job and he needed few days to pack and leave.

Then should he reply Yes to the above question ?

[jairichi]

http://www.murthy.com/2013/06/03/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence/

 

According to the above link and particularly section "No Automatic Unlawful Presence After Violation of Status" if your friend had a valid I94 he is just being out of status ad not being unlawfully present in US. So the answer should be NO. But, he could still fill it as YES and write the duration and the reason behind his statement.

 

     

[champswc2011]

He said that his I94 expires sometime in Oct 2015. So, Out of Status have nothing to do with this D160 question then. Thank you very much for your prompt replies.

 

http://www.murthy.com/2013/06/03/differences-between-lawful-status-period-of-authorized-stay-unlawful-presence/

 

According to the above link and particularly section "No Automatic Unlawful Presence After Violation of Status" if your friend had a valid I94 he is just being out of status ad not being unlawfully present in US. So the answer should be NO. But, he could still fill it as YES and write the duration and the reason behind his statement.

 

     

[jairichi]

He said that his I94 expires sometime in Oct 2015. So, Out of Status have nothing to do with this D160 question then. Thank you very much for your prompt replies.

Also, cross check with an attorney.

[champswc2011]

Also, cross check with an attorney.

Attorney replied that you one have to say 'Yes' and then explain. My friend is worried whether this will hamper his H4 visa application because of circumstances he could not control.

[jairichi]

Attorney replied that you one have to say 'Yes' and then explain. My friend is worried whether this will hamper his H4 visa application because of circumstances he could not control.

He should be fine 10 days out of status will not cause any issue. Like the way attorney replied do so.

[champswc2011]

He should be fine 10 days out of status will not cause any issue. Like the way attorney replied do so.

I was trying to find whether anyone got their visa interview cleared after out of status.  I feel this is a pretty common scenario whenever people were laid-off on H1B. Surprisingly, I did not find any post reg. this :(