I overstayed my OPT by about 170 days. I am applying to PhD programs and will need a new F1 visa to come back. I also plan to apply to jobs so a H1B would be another way of coming back. I read somewhere that so long as you have not received an official paper from USCIS, you do not start accruing unlawful status.
After the Optional Practical Training (OPT) period ends, F-1 students have a 60-day grace period to depart the U.S., change status, etc. So if you remained in the U.S. for 170 days after OPT ended, you really overstayed by 110 days. Furthermore, F-1 students who are present in the U.S. for the duration of status, which is noted as "D/S" on the I-94, typically have "authorized stay" even if they are "out of status" (i.e. no longer in school). If you had D/S (a facially valid I-94), instead of a specific end date on your I-94, and no formal finding of a status violation was made by USCIS or an Immigration Judge, you did not accrue unlawful presence before you departed the U.S.
Regardless of whether you accrued unlawful presence, you did not overstay long enough to trigger the 3-year inadmissibility bar. A 3-year bar to re-entry applies when you accrue 180 days to less than 1 year of unlawful presence in the U.S. prior to departure. The bar increases to 10 years if you accrued 1 year or more of unlawful presence in the U.S. prior to departure. If the 3/10-year bar applied, you would need a section 212(d)(3)(A) nonimmigrant waiver to receive an F-1 visa, H-1B visa, etc., prior to the expiration of the 3/10-year bar. Because you did not accrue unlawful presence lasting 180 days or more, you are not inadmissible to the U.S. on that basis.
The overstay itself, however, could make it harder for you to obtain a new visa, as a matter of discretion. The overstay might cause the US Consulate to review your visa application with disfavor or speculate that you will violate immigration law again. It would help if you provided compelling reasons for the prior F-1 overstay, as well as good reasons for why a status violation will not recur.
To get an F-1 visa, you must show nonimmigrant intent and sufficient financial resources to fund your education. To get an H-1B visa, you need a U.S. employer to petition for you. The demand for new H-1Bs is expected to exceed supply, so chances are an H-1B lottery for the 2017 fiscal year will need to be run. Unless your employer is H-1B cap exempt or you are H-1B cap-exempt, the H-1B petition for you will have to be randomly selected in the lottery for the process to continue. For more information on H-1Bs, see my articles:
H-1B Filing Season Begins April 1 (visas expected to run out in first week). http://bit.ly/1MfQcY5
Watch Out for Potential Delays and Snafus in H-1B Cap Filing. http://bit.ly/1Ev1SXI
Consult an immigration attorney for specific advice and guidance.
Applying for a new visa with 170 day overstay would likely be difficult. Factors would include the reason for your overstay, your home country and your ties to it. An attorney will need to review the individual facts of your case to give you a better answer. However your scenario is pretty grim.
Alexander Joseph SegalImmigration AttorneyNew York, NYNY licensed ·
The issue of discretion exists with every visa and the fact you overstayed will not be overlooked. At the same time, to deny the consulate often uses INA 214b but H1B is not subject to it.
There are a number of different issues in the fact that you present. One is if you accrued unlawful presence and the other the fact that you overstayed after your OPT ended. Most students maintain F-1 status do not accrue unlawful presence by overstaying though there are some exceptions to this rule. Notwithstanding, the fact that you overstayed will certainly be a consideration as to whether you are issued another F-1 visa or annoy other type of visa for that matter.
You should consult with an experienced immigration attorney who can review the facts of your case and advise you of the specific concerns of your case and how best to proceed. Many attorneys will conduct consultations via telephone or Skype for clients outside their local area.
