Overstay and Unlawful Presence provisions

[jkb11 26]

Hey everyone,

I recently learned about this, I figured I will share it with you. Although some of you might already know about it, I see a lot of posts all over the forums that wrongly state that overstaying student or w&t visas with "D/S" I-94 trigger 3/10 year bans and that a waiver is required. Here goes:

http://www.temple.edu/isss/pdfs/OverstayandUnlawfulPresenceprovisions.pdf

Important parts:

INS and DOS developed a unified interpretation of a key triggering event for purposes of both INA § 222(g) and § 212(a)(9)(B):

an alien is considered to have stayed in the United States "beyond the period of stay authorized by the Attorney General" [iNA §

222(g)(1)] or "after the expiration of the period of stay authorized by the Attorney General" [i.N.A. § 212(a)(9)(B)(ii)] only under

the following circumstances:

1. The alien has remained in the United States after the expiration date recorded on Form I-94, without having applied

for an extension or change of status; or

2. An immigration judge finds that a status violation has occurred; or

3. INS (DHS) determines in the course of adjudicating an application for an immigration benefit that there has been

status violation, and the request for the benefit is denied

o For those with a "D/S" I-94, only items 2 and 3 trigger the provision, since there is no expiration date on the

I-94.

Duration of Status (D/S) cases

F, G, J, A, and I nonimmigrants are usually admitted to the United States for a period known as "duration of status,"

indicated by the notation "D/S" on their Form I-94, rather than a specific expiration date. For those with a "D/S" I-94,

there is no I-94 date to stay beyond. A stay beyond the date listed on Form I-20 ID or Form DS-2019 (and any

applicable grace period), although considered a violation of status, is not considered to be an overstay for purposes of §

222(g) if the alien was admitted for D/S on his or her I-94. A nonimmigrant admitted for D/S will be considered an

overstay under § 222(g) only if:

1. An immigration judge finds in the course of removal proceedings that the individual has violated status,

resulting in the termination of the alien's period of authorized stay; or

2. USCIS (and now presumably DHS) determines in the course of adjudicating an application for an immigration

benefit that there has been a status violation, which results in the termination of the alien's period of

authorized stay.

Nonimmigrants admitted to the United States for "duration of status" (D/S)

F and J nonimmigrants, as well as I nonimmigrants (information media representatives) and certain A nonimmigrants,

are usually admitted to the United States for a period known as "duration of status," as indicated by the notation "D/S"

on their Form I-94. When a nonimmigrant is admitted for duration of status, no expiration date appears on Form I-94.

For those with a "D/S" I-94, only conditions 2 and 3 (above) trigger § 212(a)(9)(B) since there is no expiration date on

the I-94. A nonimmigrant admitted for D/S will therefore be considered unlawfully present for purposes of §

212(a)(9)(B) only if:

• An immigration judge finds in the course of exclusion, deportation or removal proceedings that a status

violation has occurred, resulting in a termination of the alien's period of authorized stay; or

• INS (DHS) determines in the course of adjudicating an application for an immigration benefit that there has

been a status violation, resulting in a denial of the benefit.

So, basically, if you overstay an F-1 or J-1 visa and unless you're brought to the immigration judge or file for something with USCIS, your overstay timer doesn't ever start ticking. Hence, your departure does not trigger the 3/10 year ban even if you spend way more time in the U.S. than you were supposed to.

The CO's don't neccessary have to know all the laws, so if you're in a situation like this and the CO tells you you're inadmissable based on 222(g) or 212(a)(9)(B), you need to convince them it doesn't apply to you.

Cheers!

Edited April 21, 2012 by jkb11

[me&him 2]

Im in same situation. My fiance was given

221g to provide documents. He came on student visa and stopped going to school. He was in removal proceeding and judge found him out of status on 11/06. He was awarded voluntary departure on 09/07 and left 4 days after that. Now the consulate advised him that he possibly has or had a ban and want us to show all documents regarding whether or not he has a ban and if he did that is is over and he is eligible. So my attorney requested the records and we will provide it to the consulate. Hope that is enough to prove them and issue him the visa.

[jkb11 26]

Well, there is a difference here. He was in removal proceedings and he had a hearing, so that started the overstay clock. If he was found out of status on 11/06 and departed on 09/07, then he should have incured a 3 year ban, which by now should have already elapsed. Also, if he was in removal proceedings, he would require a I-212 waiver for his 5 year ban. When did he enter the U.S. on F1? When did he exactly leave?

Cheers!

Edited May 3, 2012 by jkb11

[me&him 2]

He entetred in 2004 and left 2007. If the ban is 3 year so how come he need waiver for 5 year ban, can u please explian because I dont know. In 2006 he was detained by ICE and taken to immigration facility. I paid the bond and got him out. 11/06 was his court date where judge found him to be out of status. in 09/07 he ask for voluntary departure which was granted and he left 9 dayd later. I was told by the attorney that it would be a 3 year ban and its over not 5 or 10 year. if u can then can u plz tell me if he is correct. Im confuse between the 3 and 5 year ban. I have searched and ask lot of people and almost everyone says its the 3 year ban. Ur help will be greatly appreciated. Thank u.

Edited May 4, 2012 by me&him

[jkb11 26]

The bans are unrelated. One ban is a 3 year ban that he got from accruing his out of status time (less than a year). Based on the info provided, this ban has already expired in 2010. However, since he has been put into removal proceedings, he was also facing a concurrent, 5 year ban, independent from the overstay ban. According to your information, his ban will expire somewhere in 2012 (depends on his exact date of departure). Until then, to apply for re-admission, he would need the I-212 waiver.

I hope that clarifies the situation.

Cheers!

[me&him 2]

Thank u... I filed k1. I dont think waiver can be filed for k1. He left sep 19,2007. So 5 year over in sept. Well he did the interview already and was told to submit documentd. I have a year to submit them. I wonder if I can delay sending papers so 5 year be over in september or should I send em. I wonder if they ll deny since he is not eligible or will hold onto it till sep and then issue visa. Oh man now im freaking out because I kept hoping it was the 3 year ban, I cant believe the lawyer didnt inform and explain me this.

[VanessaTony 3,567]

The bans are unrelated. One ban is a 3 year ban that he got from accruing his out of status time (less than a year). Based on the info provided, this ban has already expired in 2010. However, since he has been put into removal proceedings, he was also facing a concurrent, 5 year ban, independent from the overstay ban. According to your information, his ban will expire somewhere in 2012 (depends on his exact date of departure). Until then, to apply for re-admission, he would need the I-212 waiver.

It is my understanding that the ban is only if you are deported, not simply from removal proceedings. Doing voluntary departure stops you from getting the ban.

As for length of ban: http://www.prisontalk.com/forums/archive/index.php/t-525821.html

Once a person is removed, they are barred from returning to the United States for a period of time, depending on the basis for removal.

* Ordered removed on inadmissibility grounds (other than a controlled substance offense)........ 5 years

* Ordered removed on deportation grounds (other than an aggravated felony)...............................10 years

* Excluded or deported under old law ......................................................................................................10 years

* Two orders of removal...............................................................................................................................20 years

* Failure to attend removal proceedings ....................................................................................................5 years

* Ordered removed for an Aggravated Felony or controlled substance offense...........................permanent

He was never ordered removed, he did voluntary departure, therefore I believe there is no bar.

[me&him 2]

It is my understanding that the ban is only if you are deported, not simply from removal proceedings. Doing voluntary departure stops you from getting the ban.

As for length of ban: http://www.prisontalk.com/forums/archive/index.php/t-525821.html

He was never ordered removed, he did voluntary departure, therefore I believe there is no bar.

Thank u so much for ur help. He did take voluntary departure. When he left he was never told about any kind of ban. The CO at the embassy did not even see anything in thier computer about him being banned. CO kept saying that his fingerprint came back as a "hit" for "possible ban" but it did not say wat for and for how long. I told him the whole story that I explained in this topic and he said thats y he is not gonna deny us. He want to make sure if there was a ban and if its over so a visa can be issue. So he basically told us to supply him with documents that shows that his UNLAWFUL PRESENCE was less than a year and that he departed within a year. So my attorney is getting his immigration record which will show the date judge found him to be out of status, awarded voluntary departure. I will also send copy of his passport which has the entry stamp from immigration showing when he arrived in country. So the time will show from the time he was found to be out of status with immigration record and his passport stamp will show when he left. it should be easy for embassy to calculate the unlawful presence time and the trigger bar based on those documents. I thought embassy would have all that information in their computer but I was shocked to see that they didnt and wanted us to provide it to them.