If OPT approved (which almost all will get approval if following procedures) all the time pending is considered legal F-1 status. If not approved, VO can consider him overstay since 61th day after graduation at his next non-immigrant visa interview. Immigration officers at US port of entry who enforce admission bar will consider the date of I-797 notice of denial to be his last day of legal presence (or as you put it: legal right to stay but no legal status)
if OPT approved,no-gap F1
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