H1B for out of status

[elpeter84]

Hi good people,
I came to the States about 4 years ago and stayed here beyond my authorized stay on the J1 visa that was originally given to me. I was able to enroll in the community college, received my AA degree and then I got accepted in the University of California. This summer I was proud to receive Bachelor's Degree in Economics as well as I was able to renew my passport while in States through russianpassportservice.com
Now I am planning to apply for H1B petition next year by April. I know that even if my petition gets approved here, I will still have to travel to St. Petersburg to receive a new visa in my passport. The attorney at law here in California advised that if I leave the USA I will not be subject to bar for 2 reasons:
1. By Law, my D/S on I 94 is so-called "duration of stay" states "Aliens admitted D/S. Nonimmignants admitted D/S who leave the United States while the E/S or C/S application is pending are not subject to section 222(g) of the Act, if no status violation was found that would have resulted in the termination of the period of stay authorized by the Attorney General. In addition, D/S nonimmigrants whose C/S or E/S applications were denied for reasons other than a status violation are not subject to section 222(g) of the Act." Simply, the petition can not be denied even though I overstayed my visa.
2. What' interesting is that H1B visa is the only "dual intent" US visa, which can not be denied based on the immigration reasons.

If there are any people who had a similar situation or any certified attorney that practiced such cases please contact me.
Best and thanks for reading.

[snowsno]

So dude, did you change your visa to F-1 from J-1? Or were you here illegally?

[Next]

Hi good people,
I came to the States about 4 years ago and stayed here beyond my authorized stay on the J1 visa that was originally given to me. I was able to enroll in the community college, received my AA degree and then I got accepted in the University of California. This summer I was proud to receive Bachelor's Degree in Economics as well as I was able to renew my passport while in States through russianpassportservice.com
Now I am planning to apply for H1B petition next year by April. I know that even if my petition gets approved here, I will still have to travel to St. Petersburg to receive a new visa in my passport. The attorney at law here in California advised that if I leave the USA I will not be subject to bar for 2 reasons:
1. By Law, my D/S on I 94 is so-called "duration of stay" states "Aliens admitted D/S. Nonimmignants admitted D/S who leave the United States while the E/S or C/S application is pending are not subject to section 222(g) of the Act, if no status violation was found that would have resulted in the termination of the period of stay authorized by the Attorney General. In addition, D/S nonimmigrants whose C/S or E/S applications were denied for reasons other than a status violation are not subject to section 222(g) of the Act." Simply, the petition can not be denied even though I overstayed my visa.
2. What' interesting is that H1B visa is the only "dual intent" US visa, which can not be denied based on the immigration reasons.

If there are any people who had a similar situation or any certified attorney that practiced such cases please contact me.
Best and thanks for reading.

1. You don't have to go to Russia to get visa. Canada, Mexico - other options.
2. Normally, people apply for the H1 to change their status ( from F1 or J1).
What status do you have?

[elpeter84]

I was here illegally. I simply overstayed my J1 4 years ago.

[Alex_3112]

I was here illegally. I simply overstayed my J1 4 years ago.

So, you're out of status for 4 years!
Applying for H1 now is a gamble, however there were reports of success.
And going abroad to get a visa is even more gamble - you fall under 10-years inadmissibily ban because of overstay.

[elpeter84]

So, you're out of status for 4 years!
Applying for H1 now is a gamble, however there were reports of success.
And going abroad to get a visa is even more gamble - you fall under 10-years inadmissibily ban because of overstay.

Nope, what determines grounds of inadmissibility and a bar so to speak is not a visa, but I 94. The officer on the border check issues I 94 form with the date on it and a visa holder must not overstay and leave the country prior to the expiration (on I 94 not on a visa). As I mentioned before D/S on I 94 is not subject to bar even if visa got expired. The law.

[Alex_3112]

As I mentioned before D/S on I 94 is not subject to bar even if visa got expired. The law.

admitted D/S who leave the United States while the E/S or C/S application is pending

- this has nothing to do with your case. This only means you can travel freely (but you still need a valid visa!) until your application is adjudicated. In other words, if you apply for change of status now (and somehow J1 visa in your passport is still valid) you should be admitted back into US. This will not work after adjudication is complete, i.e. your change of status approved or denied.

[elpeter84]

Nope, what determines grounds of inadmissibility and a bar so to speak is not a visa, but I 94. The officer on the border check issues I 94 form with the date on it and a visa holder must not overstay and leave the country prior to the expiration (on I 94 not on a visa). As I mentioned before D/S on I 94 is not subject to bar even if visa got expired. The law.

I am not to debate here. If my H1B petition gets approved here, I have to go to the US Consulate and pass an interview. Is there anyone who's got a similar situation or any attorney who practiced such cases in the past?