Re-entering US upon F-1 overstay

[Alex2010 0]

Hello,

I am a German citizen who lived and studied in the United States for four years on a F-1 student visa. When I graduated last year in February, I didn't leave the country for another year and thereby definitely overstayed my duration of status. The proof of my overstaying is of course the white I-94 departure record slip I had to surrender to the airline representative when I finally left the US this year. I am now planning a vacation to the US and before booking want to know what my chances of getting readmitted are.

Here are my questions:

1. Does the airline representative really hand all departure slips to some CBP officer who at the end of the day enters every passenger's departure date into some database?

2. If that is really the case, will the CPB officer who checks my passport upon re-entering the US actually have access to the same database and will notice that I had overstayed my last visit?

3. Even if he will become aware of this fact, will he deny me entry into the country because of this?

4. Lastly, how can I prepare to assure my successful re-entering the country (apply for a 6-month tourist visa, get a new passport with a new passport no.,etc.)?

Thank you people a lot in advance for you advice in the matter.

[sachinky 465]

When did your visa expire?

When did you leave the U.S.?

Depending on the length of your overstay, you may be subject to a 3 year or 10 year ban on re-entry.

F-1s have D/S stamped on the I-94, that is, their stay is 'legal' so long as they maintain status. Upon graduation, I believe you have 60-90 days to leave the U.S. unless you're on OPT or however long the visa is valid for, so check the dates carefully as you may be looking at a ban.

[twowls 217]

Hello,

I am a German citizen who lived and studied in the United States for four years on a F-1 student visa. When I graduated last year in February, I didn't leave the country for another year and thereby definitely overstayed my duration of status. The proof of my overstaying is of course the white I-94 departure record slip I had to surrender to the airline representative when I finally left the US this year. I am now planning a vacation to the US and before booking want to know what my chances of getting readmitted are.

Here are my questions:

1. Does the airline representative really hand all departure slips to some CBP officer who at the end of the day enters every passenger's departure date into some database?

2. If that is really the case, will the CPB officer who checks my passport upon re-entering the US actually have access to the same database and will notice that I had overstayed my last visit?

3. Even if he will become aware of this fact, will he deny me entry into the country because of this?

4. Lastly, how can I prepare to assure my successful re-entering the country (apply for a 6-month tourist visa, get a new passport with a new passport no.,etc.)?

Thank you people a lot in advance for you advice in the matter.

I don't have answers to all your questions but I do know this: They WILL know if you overstayed, even if there's no ban, and you will be rejected. Just digest that completely. My fiance overstayed his visa waiver time by a couple months (not ban-able); we left the country via Mexico, he went back through Europe and then showed up at a U.S. POE after having been approved for ESTA--and they took one quick look and sent him straight back to England within the hour. They know. Forget the "wish and a prayer" route. Unless you want to have first hand knowledge of how being silly feels so you can admonish others about it later. Which has its charms. Not eight hundred dollar and untold trauma charms though.

[Penguin_ie 5,993]

If you did indeed overstay (see explanation above) then yes, they will know and no, you will not be allowed into the country easily. You will not be able to use the visa waiver program Germans usually use for holidays again. You can apply for a B tourist visa, and you might get it (a friend of mine did after a J1 overstay, he applied for a tourist visa to attend a cousin's wedding and got it), but it depend on your individual circumstances.

[DTunda 0]

A friend of mine here in Norway overstayed her visa waiver allotment by several months and she was given a ban (3 years I think). She tried applying for a B2 tourist visa and was denied.

Nevertheless, if you don't mind spending the fee on a highly uncertain case such as your own, try your luck and see what happens. If you have very compelling reasons for your overstay they might see with you and issue you a B2.

All the best.

[zoso 0]

If you had I-94 with D/S and left USA without any immigration procedure you will be able to come back. I had I-94 D/S and overstayed F-1 visa by 10 months. I also submitted I-94 card to airline representative and left USA. 3 Months later i applied for another F-1, issued and entered US same month without any problem.

Good luck

[Brother Hesekiel 2,236]

Unless your I-94 was stamped D/S, it appears that you overstayed for over a year. If that's the case you triggered a 10-year ban to reenter the moment you left. You can't use the VWP; you'll need a B2. By applying you'll find out if they have you listed as an overstayer. You may get lucky, but you won't know until you try.

Just for kicks you can also try ESTA and see if it comes back positive or negative.

[twowls 217]

Just for kicks you can also try ESTA and see if it comes back positive or negative.

Just for kicks though--you can be approved and it means a whole lot of nothing, as we learned...wee!

[Brother Hesekiel 2,236]

There are no guarantees in life, my friend. If you see a pot with boiling water, you know it's hot. But if you approach a bathtub and the water is not boiling, you'll have to slowly approach it in order to find out if it's safe to dive in.

There's not much else the O.P. can do in his situation. The first question is: was his overstay detected? Well, if his F1 had a D/S validation, there's a good chance that he got lucky. I don't know what the I-94 read, so that would help. For the same reason, it's hard to say if a new passport would do any good. Perhaps the CBP Officer looks at the F1 and knows here's somebody who studied in the US for several years yet went home afterward. But maybe not. Maybe he will look up the date of departure. Again, nobody really knows.

Furthermore, it's still some kind of mystery how the database works. Gazillions of people travel to the US every year, and all it takes to create confusion is for one airline employee to forget to remove the I-94, or for the passport holder to have lost it before departing, or some other incident, none of which are so totally out of this world. Yet, as he already held a F1, he will need a B2, and why not trying to get one? In his case he can say he would like to visit some friends and his old Alma Mata. There's really nothing to lose except some money. I can't think of another way, really.

[Alex2010 0]

Hello Everybody,

thank you for your many comments and sorry for my long absence. Didn't think that so many people would reply so fast. I am going to respond to your follow-up questions one by one and provide some additional information on my case.

When did your visa expire?

When did you leave the U.S.?

Depending on the length of your overstay, you may be subject to a 3 year or 10 year ban on re-entry.

F-1s have D/S stamped on the I-94, that is, their stay is 'legal' so long as they maintain status. Upon graduation, I believe you have 60-90 days to leave the U.S. unless you're on OPT or however long the visa is valid for, so check the dates carefully as you may be looking at a ban.

I don't think it is so much a question of when my visa expired then when my status ended. As you already alluded to, even a valid visa is useless without maintaining status. In the case of F-1 visas, the duration of status is specified on the I-20. In the usual case, I should have left the country within the grace period that began after my graduation. Yes, the DHS/USCIS admittance stamp on my I-20 read "Class F-1, Until D/S". As well as the other re-entry stamps that were stamped in my passport each time I returned to the U.S. after spending the holidays in Germany. Now here come two extra pieces of information that I intentionally left out in my original post to not make my case too complicated.

First of all, I applied and was approved for post-completion OPT. I thus received a Employment Authorization Card which would have carried me through the entire twelve months that I ended up overstaying. I say "would" because I never found an employer and I think the rules state that you have to start working within three months after the card issue date or leave the country. Thus, I "should" have left the country at the end of May in 2009, but only left it at the end of April of this year. That puts my overstay at almost exactly twelve months.

Secondly, the last time I re-entered the US in January of last year after spending Christmas in Germany, I entered the country on an expired visa! Imagine that. I didn't realize that it had expired while in Germany and thus missed to renew it. Upon re-entering I explained all of this to the CBP officer who granted me entry on a $545 I-193 Passport Waiver. Though the I-193 was valid to 2018, it was also stamped D/S.

Regarding the whole "ban" issue: I was told by another member that violation of an F-1 visa does not result in "unlawful presence", so I should not be subject to a ban. Does anybody here actually now for a fact how many months of overstaying constitute "unlawful presence" or will result in a ban? I understand that I nevertheless might still be denied entry if the officer feels I may have overstayed. But I am sure the whole ban issue is out of the question.

If you did indeed overstay (see explanation above) then yes, they will know and no, you will not be allowed into the country easily. You will not be able to use the visa waiver program Germans usually use for holidays again. You can apply for a B tourist visa, and you might get it (a friend of mine did after a J1 overstay, he applied for a tourist visa to attend a cousin's wedding and got it), but it depend on your individual circumstances.

Yes, I am pretty sure that even with a successful ESTA I might have the most problems entering the US under the VWP. After getting a new passport, I will apply for a B tourist visa.

A friend of mine here in Norway overstayed her visa waiver allotment by several months and she was given a ban (3 years I think). She tried applying for a B2 tourist visa and was denied.

Nevertheless, if you don't mind spending the fee on a highly uncertain case such as your own, try your luck and see what happens. If you have very compelling reasons for your overstay they might see with you and issue you a B2.

All the best.

We will see how it plays out at the embassy. Thanks anyway.

If you had I-94 with D/S and left USA without any immigration procedure you will be able to come back. I had I-94 D/S and overstayed F-1 visa by 10 months. I also submitted I-94 card to airline representative and left USA. 3 Months later i applied for another F-1, issued and entered US same month without any problem.

Good luck

What do you mean by "immigration procedure"? I did the same thing as you. On my way out, the only contact with US officials I had was with the officer who checked my plane ticket; and he only got to see my US driver's license. Two consecutive F-1s? Sounds unusual. Maybe a B visa won't be a problem

Unless your I-94 was stamped D/S, it appears that you overstayed for over a year. If that's the case you triggered a 10-year ban to reenter the moment you left. You can't use the VWP; you'll need a B2. By applying you'll find out if they have you listed as an overstayer. You may get lucky, but you won't know until you try.

Just for kicks you can also try ESTA and see if it comes back positive or negative.

I think just because my I-94 was stamped D/S, I overstayed for a year, not the other way around. Otherwise I could have stayed in the country for the validity of my visa without maintaining any kind of status (disregarding the fact that my visa was actually already expired at that point). Is there actually any kind of legal text you are leaning on when proclaiming the dreaded 10-year ban?

There are no guarantees in life, my friend. If you see a pot with boiling water, you know it's hot. But if you approach a bathtub and the water is not boiling, you'll have to slowly approach it in order to find out if it's safe to dive in.

There's not much else the O.P. can do in his situation. The first question is: was his overstay detected? Well, if his F1 had a D/S validation, there's a good chance that he got lucky. I don't know what the I-94 read, so that would help. For the same reason, it's hard to say if a new passport would do any good. Perhaps the CBP Officer looks at the F1 and knows here's somebody who studied in the US for several years yet went home afterward. But maybe not. Maybe he will look up the date of departure. Again, nobody really knows.

Furthermore, it's still some kind of mystery how the database works. Gazillions of people travel to the US every year, and all it takes to create confusion is for one airline employee to forget to remove the I-94, or for the passport holder to have lost it before departing, or some other incident, none of which are so totally out of this world. Yet, as he already held a F1, he will need a B2, and why not trying to get one? In his case he can say he would like to visit some friends and his old Alma Mata. There's really nothing to lose except some money. I can't think of another way, really.

To answer you first question in this last past of yours, my overstay was not immediately detected at the time, but probably will be upon trying to re-enter the US. I still don't understand how the D/S validation on a F-1 visa would be a benefit? It restricts the visa and has you maintain your status in order for it to stay valid. About the passport issue: I figure the less eyebrows my documents raise, the better my chances are. The only thing I am trying to achieve by getting a new passport is a new passport number with possibly a little less "history".

Again, thanks everybody for your input. I hope I didn't strike you as argumentative. Experiences are great, but actual regulations are better.

Alex

[sachinky 465]

Ok. So let me see if I have this straight. Your visa expired--whenever, doesn't matter.

You graduated in May 2009, yes?

Applied for an OPT/EAD that should have been valid for 12 months.

Now, if you weren't working on that OPT, then you have 60 (or 90) days to leave the U.S. from what I can remember of my own OPT.

So, at least, you have an overstay period of 9 months which puts you in the 3 year ban category.

Try for a B-2. At the most, you lose $131.

Will the CBP be aware of your overstay and deny you entry even with a visa? Maybe, maybe not.

F-1s are a strange category because their stay in the U.S. is governed by the D/S on the I-94 and their presence is deemed to 'unlawful' only by an IJ. This is just my limited understanding but I'm sure some of the more experienced members will be able to shed more light on this.

[Officer 0]

with an explanation of seeking for a job in a poor economy.I think you should be fine. My wife also graduated in May 09 had OPT for a year which just expired last month.Never found a job due to the bad economy,but she was able to adjust her status with no problem. Just give it a shot.