Overstayed F1 visa? Information...

[missinu 1]

My husband was in the United States and was admitted for a F1 student visa. After consulting with numerous attorneys that offered cheap or free consultation, they were stressing us out trying to figure out if he had overstayed his visa or “acquired unlawful presence”. After researching it, we found many resources that explained he did not acquire unlawful presence because he had a D/S on his I-94.

Finding out this information we thought it may be helpful for anyone that is in this similar situation.

Some great websites to look at:

http://www.ilw.com/immigrationdaily/news/2009,0515-neufeld.pdf <--This offers good examples and explains the information

http://www.state.gov/documents/organization/87120.pdf <--This offers information from the FAM that consular officials use to interpret the INA.

http://britishexpats.com/forum/showthread.php?t=646237 <--An example that someone was asking a lawyer.

http://www.justanswer.com/immigration-law/3dir9-overstayed-f1-visa-one-year-left-us.html <--Another example of someone asking a lawyer.

http://www.state.gov/m/a/dir/regs/fam/09fam/index.htm <-- Additional information

[milimelo 4,520]

My husband was in the United States and was admitted for a F1 student visa. After consulting with numerous attorneys that offered cheap or free consultation, they were stressing us out trying to figure out if he had overstayed his visa or "acquired unlawful presence". After researching it, we found many resources that explained he did not acquire unlawful presence because he had a D/S on his I-94.

Finding out this information we thought it may be helpful for anyone that is in this similar situation.

Some great websites to look at:

http://www.ilw.com/i...515-neufeld.pdf <--This offers good examples and explains the information

http://www.state.gov...ation/87120.pdf <--This offers information from the FAM that consular officials use to interpret the INA.

http://britishexpats...ad.php?t=646237 <--An example that someone was asking a lawyer.

http://www.justanswe...ar-left-us.html <--Another example of someone asking a lawyer.

http://www.state.gov...09fam/index.htm <-- Additional information

D/S only works if he was in full student status - if he dropped out of the school he was reported to SEVIS and that may mean he did accrue unlawful presence.

[Harsh_77 718]

yep I would repeat what previous poster has said, he was legal in the country until the date on his i-20 and he was maintaing the full-time student status.

Any stay after that would be illegal.

[missinu 1]

It is considered out of status not unlawfully present or not an overstay since there was a d/s on his I-94 and I-20.

*For aliens inspected and admitted for "duration of status" (DOS),

any period of presence in the United States, unless DHS or an

immigration judge makes a formal finding of a status violation, in

which case unlawful presence will only begin to accrue as of the date of the formal finding;

**When calculating unlawful presence, the date that the Form I-94 (or any

extension) expires is considered authorized and is not counted. In

addition, the date of departure from the United States is not counted as

unlawful presence. In duration of status cases where DHS or an IJ makes

a formal status violation finding, the alien begins accruing unlawful

presence on the date of the finding (i.e., the date the finding was

published/communicated). For example, if an applicant presents a letter

from DHS dated December 1, 2008, that says the applicant was out of

status starting on May 28, 2001, the applicant began to accrue unlawful

presence as of December 1, 2008, not May 28, 2001. Note that, in the

event that an IJ made the status violation finding and concurrently issued

a voluntary departure order, no unlawful presence would accrue if the

applicant complied with the order by making a timely departure.

***Overstay: Overstay means staying in the U.S. beyond the date indicated on your I-94 or the corresponding D/S (Duration of Status). Overstay is one of the acts (the most common) that causes you to be ‘out of status’.

NOTE: Persons admitted for duration of status can only overstay if found to be in violation of status.

****Unlawful presence: Unlawful presence means presence in the U.S. after the expiration of the period of stay authorized by the Immigration Inspector/Custom’s Officer at the time of entry. It also includes any presence in the U.S. without being inspected and admitted or paroled.

NOTE: If your I-94 is non-date specific, i.e D/S (Duration of Status), then Unlawful Presence begins when an Immigration Judge or USCIS adjudicator declares you have violated your status.

*****A foreign national may be out-of-status in the U.S., but may not be unlawfully present in the U.S., whereas a foreign national having unlawful presence is, by definition, out-of-status. For instance, a nonimmigrant student on an F-1 or J-1 visa who is granted “Duration of Status” or “D/S” may be out of status if not enrolled in a school but would not be accruing unlawful presence for purposes of the 3 and 10 year bars.

[Boiler 45,776]

NOTE: If your I-94 is non-date specific, i.e D/S (Duration of Status), then Unlawful Presence begins when an Immigration Judge or USCIS adjudicator declares you have violated your status.

The important bit.

[Harsh_77 718]

It is considered out of status not unlawfully present or not an overstay since there was a d/s on his I-94 and I-20.

*For aliens inspected and admitted for "duration of status" (DOS),

any period of presence in the United States, unless DHS or an

immigration judge makes a formal finding of a status violation, in

which case unlawful presence will only begin to accrue as of the date of the formal finding;

**When calculating unlawful presence, the date that the Form I-94 (or any

extension) expires is considered authorized and is not counted. In

addition, the date of departure from the United States is not counted as

unlawful presence. In duration of status cases where DHS or an IJ makes

a formal status violation finding, the alien begins accruing unlawful

presence on the date of the finding (i.e., the date the finding was

published/communicated). For example, if an applicant presents a letter

from DHS dated December 1, 2008, that says the applicant was out of

status starting on May 28, 2001, the applicant began to accrue unlawful

presence as of December 1, 2008, not May 28, 2001. Note that, in the

event that an IJ made the status violation finding and concurrently issued

a voluntary departure order, no unlawful presence would accrue if the

applicant complied with the order by making a timely departure.

***Overstay: Overstay means staying in the U.S. beyond the date indicated on your I-94 or the corresponding D/S (Duration of Status). Overstay is one of the acts (the most common) that causes you to be ‘out of status’.

NOTE: Persons admitted for duration of status can only overstay if found to be in violation of status.

****Unlawful presence: Unlawful presence means presence in the U.S. after the expiration of the period of stay authorized by the Immigration Inspector/Custom’s Officer at the time of entry. It also includes any presence in the U.S. without being inspected and admitted or paroled.

NOTE: If your I-94 is non-date specific, i.e D/S (Duration of Status), then Unlawful Presence begins when an Immigration Judge or USCIS adjudicator declares you have violated your status.

*****A foreign national may be out-of-status in the U.S., but may not be unlawfully present in the U.S., whereas a foreign national having unlawful presence is, by definition, out-of-status. For instance, a nonimmigrant student on an F-1 or J-1 visa who is granted “Duration of Status” or “D/S” may be out of status if not enrolled in a school but would not be accruing unlawful presence for purposes of the 3 and 10 year bars.

I dont think one can just stop going to school and say they are still maintaing the status based on this statement (then Unlawful Presence begins when an Immigration Judge or USCIS adjudicator declares you have violated your status)

[Brother Hesekiel 2,236]

Not that it is of any significance or that anyone cares if somebody is out of status when filing for AOS.

It's like trying to figure out if the price of a shirt should have been reduced from $9.99 to $6.99 based on that it was hanging in the "Sale" section although the label didn't reflect that, after the manager gave you the shirt as a present, free of charge.

[Harsh_77 718]

lol ...Like you analogy Bob.