Urgent: F1 OPT Overstay

[Meltyr 0]

Hello all, I would like some immigration advice from the community.

I came to the US in 2012 on an F1 visa. I graduated in Augst 2015. After that, I was on OPT from October 2015 - October 2016. I got married to my boyfriend in November 2016. However, we did not proceed with the green card application because we couldn't meet the financial requirements. To avoid any further legal issues, I'm leaving the US voluntarily. My EAD expired on 08 October 2016. I wanted to leave before 08 October 2017 but some things just didn't quite work out so I am only leaving at the end of October but I fear that would trigger the 10-year ban.  I know that I got the 3-year ban and I would very much like to avoid the 10-year ban. I just need to know when exactly does my 10-year ban start. Does that 1-year overstay start from the expiration date on my EAD card or 60 days after that date since I have the 60 days grace period after my OPT ended?  

On the other hand, my i94 says D/S. I've been researching and some articles do say that I have not accrued unlawful presence until the USCIS or an immigration judge makes a formal finding that I have fallen out of status. Does that mean I might not even have a ban on my passport?

All these research left me completely confused and the lawyers I've consulted never gave me a clear answer. Could someone please shed some light on my situation. Any advice/tips would be greatly appreciated. 

Thanks! 

Cheers,
Mel

[Hypnos 6,578]

1 hour ago, Meltyr said:

my i94 says D/S. I've been researching and some articles do say that I have not accrued unlawful presence until the USCIS or an immigration judge makes a formal finding that I have fallen out of status

You have no overstay due to this.

[piff 46]

60 days after the EAD, this is when it all starts. Needs to be explained to the officer too in case she/he is unaware and may start to calculate differently 

[geowrian 22,338]

Unlawful presence does not accrue for somebody admitted as D/S until an IJ or IO makes a determination that you are not authorized to remain in the US. So you shouldn't have a bar on exit from the US. If you decide to apply for a spousal visa, it shouldn't be an issue. But if you try to obtain/use a non-immigrant visa, they can consider the past overstay (likely resulting in a refusal).

 

Why not AOS since you're in the US? You can try to find a joint sponsor if your spouse's income is still insufficient. The overstay will be ignored for AOS purposes (assuming your spouse is a USC).

[piff 46]

2 hours ago, geowrian said:

Unlawful presence does not accrue for somebody admitted as D/S until an IJ or IO makes a determination that you are not authorized to remain in the US. So you shouldn't have a bar on exit from the US. If you decide to apply for a spousal visa, it shouldn't be an issue. But if you try to obtain/use a non-immigrant visa, they can consider the past overstay (likely resulting in a refusal).

 

Why not AOS since you're in the US? You can try to find a joint sponsor if your spouse's income is still insufficient. The overstay will be ignored for AOS purposes (assuming your spouse is a USC).

yes but the the officials at school are the ones that dictate the dates for the EAD, EAD is used based on I-20, therefore they know when it expires, and then they annul the status - from that point it is 60 days, so it is 60 days until you actually let them know that you are either changing a status etc..

[geowrian 22,338]

4 minutes ago, piff said:

yes but the the officials at school are the ones that dictate the dates for the EAD, EAD is used based on I-20, therefore they know when it expires, and then they annul the status - from that point it is 60 days, so it is 60 days until you actually let them know that you are either changing a status etc..

There's 2 aspects involved here...legal status and unlawful presence. The legal status expires but unlawful presence does not accrue until an IJ or IO makes a determination.

 

I will refer to this thread:

 

 

Edited September 28, 2017 by geowrian

[piff 46]

1 hour ago, geowrian said:

There's 2 aspects involved here...legal status and unlawful presence. The legal status expires but unlawful presence does not accrue until an IJ or IO makes a determination.

 

I will refer to this thread:

 

 

I don't need to refer to the thread, I spoke to the school official when I was in that status 6 years ago. Legal status' termination the next day becomes an unlawful presence. If no one cancels your status, according to you, a person could be here LEGALLY forever? Nope!

[geowrian 22,338]

3 minutes ago, piff said:

I don't need to refer to the thread, I spoke to the school official when I was in that status 6 years ago. Legal status' termination the next day becomes an unlawful presence. If no one cancels your status, according to you, a person could be here LEGALLY forever? Nope!

Well, you don't need to refer to it...I can't make you. But I referred you to it because it states the actual criteria they use for determining unlawful presence as it applies to a 3/10 year bar.

 

Edit: And to reiterate what i said above...I didn't say somebody could legally stay in the US indefinitely. I said they will not accrue unlawful presence if admitted as D/S.

 

Copy/pasting the relevant info:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

Page 25:

(b)(1)(E)(ii): Nonimmigrants Admitted for Duration of Status (D/S):

...If an immigration judge makes a determination of nonimmigrant status violation...unlawful presence begins to accrue the day after the immigration judge's order. It must be emphasized that the accrual of of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated. See 8 CFR 239.3.

 

[...]

 

https://www.shusterman.com/unlawfulpresence-canadians/

"As in duration of status cases...who is found to have violated status and be removable by an Immigration Judge, or found to have violated status, by an INS officer, in the course of adjudicating a benefit, such as an extension of stay or a change of adjustment of status, is unlawfully present. The unlawful presence commences on the date when the immigration judge, or INS officer, makes the ruling, not the date the status violation began."

http://srwborderlawyers.com/blog/2012/6/26/cbp-finds-canadian-citizen-inadmissible-to-the-us-for-unlawf.html

https://www.temple.edu/isss/immigration/overstay.html

https://www.avvo.com/legal-answers/will-i-be-denied-a-k-1-visa-or-barred-from-the-u-s-982101.html

 

Edited September 28, 2017 by geowrian

[piff 46]

OK, then you are saying that if someone came here on a J-1 visa which is D\S admitted, then the program is over on September 1, and then 30 days are given to depart, so if some does not depart by September 30 and stays for 2 years, it does not trigger a bad?

 

the tricky part of D\S, is that the date of which the program ends is flexible, and if the program is over, then the person is here unlawfully (after the 30/60 days depending on a visa) and this therefore is triggering an unlawful presence.  

[geowrian 22,338]

If they are admitted as D/S, then that's correct. See the PDF file linked above (from the AFM) under "Determining When an Alien Accrues Unlawful Presence".

[geowrian 22,338]

One more reference:

https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-17138/0-0-0-18383.html

"Example 3  

An alien is admitted for “duration of status” as an F-1 nonimmigrant student. One year later, the alien drops out of school, and remains in the United States for one year after dropping out.  

The alien’s status became unlawful when she dropped out of school. Neither USCIS nor an IJ ever makes a finding that the alien was out of status; therefore, she never accrues any unlawful presence for purposes of section 212(a)(9)(B ) of the Act. AFM Chapter 40.9.2(b)(1)(E)(ii)."

 

Section in red is the part I quoted previously in the thread.

Edited September 28, 2017 by geowrian

[Meltyr 0]

Thank you everyone for your input, it's greatly appreciated. So from what I've been reading, there are two likely scenarios:

1. I have not accrued unlawful presence because neither USCIS or an IJ ever made a finding that I was out of status so I do not have a 3/10 year ban. (Is this something I'll have to bring up to an embassy officer when I try to enter the US again?)
2. If I leave by October 31st, I might have a 3-year ban because I've overstayed for more than 180 days but not more than 365 days. I'm counting the days after December 7, 2016 (That's 60 days after my EAD card expired.) 

I'm upset about the possible 3-year ban but it's much better than a 10-year ban. I do have another question then. How hard would it be for me to come back to the US in the future? What if I want to come here for grad school (Another F1 Visa) or to visit for business/pleasure (B1/B2 Visa)?

[geowrian 22,338]

2 minutes ago, Meltyr said:

Thank you everyone for your input, it's greatly appreciated. So from what I've been reading, there are two likely scenarios:

1. I have not accrued unlawful presence because neither USCIS or an IJ ever made a finding that I was out of status so I do not have a 3/10 year ban. (Is this something I'll have to bring up to an embassy officer when I try to enter the US again?)
2. If I leave by October 31st, I might have a 3-year ban because I've overstayed for more than 180 days but not more than 365 days. I'm counting the days after December 7, 2016 (That's 60 days after my EAD card expired.) 

I'm upset about the possible 3-year ban but it's much better than a 10-year ban. I do have another question then. How hard would it be for me to come back to the US in the future? What if I want to come here for grad school (Another F1 Visa) or to visit for business/pleasure (B1/B2 Visa)?

1. Correct. You shouldn't have to bring it up, but it's always possible they miss something and it needs to be sorted out afterwards.
2. IMO, no...no bar for unlawful presence while D/S is still active. See above.

With no bar but any overstay, it's very difficult to get a non-immigrant visa in the future. Convincing the CO that you won't violate the terms of your visa is not an easy task, but it's really at their discretion.

If there was a 3/10 year bar, getting a non-immigrant visa would not be possible without a waiver, which is very unlikely (plus you would stil need to be eligible for it in the first place...same as #1).

 

For an immigrant visa (or K-1), with no bar you should be fine.

For an immigrant visa (or K-1), if you had a bar, you would need an I-601 waiver. Cost: ~$1000 (plus attorney fees if you went through one) + ~6-7 months on average for processing.

[Coco8 1,042]

You can start AOS right now without leaving the U.S. Once you apply, in ~4 months you will get an EAD and be able to work. 

 

The fact that you didn't start the application earlier does not matter. 

 

Do not leave. A spousal visa takes ~ 14 months!

Edited September 28, 2017 by Coco8

[Boiler 45,880]

On what basis would you be looking to come back, and when?