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Unlawful Presence in the context of Appeal or MTR

February 14, 2014

If an H-1B or an L-1 EOS (extension of Stay) or COS (Change of Status) has been denied by USCIS, ULP (Unlawful Presence) will start to accrue from the date of I-94 expiration. And if the individual was admitted for duration of status (such as an F-1 or J-1 individuals to H-1B type cases), ULP will begin to accrue on the day after the EOS/COS denial.

MTR-Specific: If the individual files an MTR (Motion to Reopen/Reconsider), the mere filing of the motion will not stop the accrual of ULP. However, if the motion is successful (i.e. reopened and approved) and the benefit is granted, the individual will be deemed to not have accrued ULP during the pendency of the motion. If the motion is successful but the benefit is still denied, ULP will only accrue from the date of the last denial, as long as the initial request was timely and non-frivolous.

Appeal-Specific: If there is denial of the underlying H or L petition, upon which an EOS/COS is based, is appealed to the Administrative Appeals Office, the mere filing of the appeal will not stop the accumulation of ULP. However, if the petition denial is reversed on appeal, and EOS/COS subsequently granted, no ULP will be deemed to have accrued between the denial of the petition and request for EOS/COS and the subsequent grant of the EOS/COS.

Thus, given that it is unpredictable what the outcome of a filed MTR or an appeal is going to be, whether they will be accepted or not, and because of the fact that ULP begins to accrue from the time of I-94 expiration in most cases, it is prudent that employees whose H or L has been denied consider leaving the U.S. upon being notified of such denial to avoid accruing ULP.

ULP in the US for more than 180 days and less than 365 days results in a three-year bar from reentering the U.S.  ULP of more than one year will result in a ten-year bar.  This is also commonly known as 3/10 year bar.

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