H1b to F1 Change of Status Denied and I-94 Expired

[Positive]

I applied for I-539 in October for conversion to F1 (PhD) starting Jan 3rd 2012. My H1B along with I-94 expired on Nov 30th 2011. USCIS denied my application on Jan 26th stating that there is more then 30 days gap between my H1 and F1 and I am out of status. I have 34 days of gap between H1B expiration and I-20 start date. I am completely in shock given that my school international student advisor does not know this rule and now I am asked to leave the country. I will be leaving in next week.

I have completed all the required course work except dissertation. All through my stay in US, I have been associated with the university (masters and then ful time job as research associate) and never had any issues with visas (First F1 - OPT - H1B and extension for one year). Now I am planning on attending F1 visa interview back in my country. I have 100% funding and colloborations with researchers back in my home country and I have enough evidence to show strong ties to come back after my PhD. I have a US born baby and husband is currently on H1B (no green card processing as of now). Please let me know I have any chane of getting the F1 or this overstay is going to impact all my career in US. In case if F1 is not approved, will I have problems in gettign my H4 as well becasue of this overstay?

Any kind of informaiton in this regard would highly be benificial.

[T53147]

Leave before your illegal presence on the basis of your H1B generates a ban. Apply for H4; you may study (but not work) on H4. H4 has different requirements for immigrant intent than F1. You may try for F1 stamping with consular processing. You are not entitled to be in school at this time; some schools would walk you to the airport to insure you left the country

[Positive]

Thank you for your response. Usually, When will the ban be generated? I thought its not until 180 days of overstay. Is it right after the denial? I am planning to leave in less than a week from now. Please let me know.

Do you know any one that had a successful visa stamping after such situation? Thanks again for your response.

[T53147]

Any illegal presence has potential ramifications in immigration matters. A short stay in you particular situation, IMO, has a low probability. You imply that you intend to return to your home country so why do you care about how it affects your career in the US. If you do, that tends to indicate that your were properly denied F-1 due to immigration intent.

[Positive]

Thank you for your response.
By "Career" I meant my PhD and the 27 months of OPT I get. My research work is based on my home country. I am just debating between whether to go for F1 or apply for H4 and after coming back to US, apply for COS for F1. Which way I can have a better probablity of meeting my long term goal - obtianing a PhD degree.

[pr96]

Positive.
What did you do about your case?

[Positive]

I applied for H-4 and got approved.