Student out of status for +180 days in 2 schools

[Najdian 1]

Dear all,

 

Here's the situation that's occurring to my brother (f-1 visa) in the US. He is now been out of status for 11 months, 7 months while he was in one school, and now 4 months in another school. A couple of weeks ago the international office at his school called him and told him he needs to leave the country immediately and re-enter to make his presence in the US legal. After I made some research, I found out that since he exceeded 180 days and less than 365 days, he will be prevented from getting back in the US for 3 years, and a new visa application will be denied with no chance. As you now this semester is almost over, and leaving the country at this time knowing he will not be able to get back will not do him any good, so I am thinking he should stay the month and finish this semester and then come back home. 

 

Am I correct? and how's the idea of him staying the extra month? 

[Coco8 1,042]

If he is out of status then he has not been a full-time student for almost a year. Has he been taking any classes? 

 

Finishing the semester or not finishing the semester? I do not see the difference of finishing the semester. He won't graduate since he won't be allowed back to the US.

I think that staying an extra month is a waste of money. Plus, if he has not been a full-time student, what has he been doing? This is more of family issue than a visa one. From a visa perspective, if he gets arrested and he is asked for any paperwork, he could get deported, so I'd tell him not to party/drink/drive/etc (though he might not have a driver's license with an expired SEVIS).

[SallyMathis 1]

It is better not to risk it, but he may finish the semester and just agree to not return to the US for 3 years.

[maryLu 58]

On an F1 visa he most likely entered with d/s on his I94, so he does not have unlawful presence. He is out of status (because he didn't respect the visa conditions) but he does not have unlawful presence.  From the INA "Individuals who are admitted to the U.S. as F1 students for the duration of status (“D/S”) do not begin to accumulate unlawful presence unless/until there is an official finding that the student has fallen out of status by either an Immigration Judge or U.S. Citizenship an Immigration Services (“USCIS”).  The act of dropping out of school alone does not begin the accumulation of unlawful presence."

 

Edited November 13, 2017 by maryLu

[geowrian 22,337]

1 hour ago, maryLu said:

On an F1 visa he most likely entered with d/s on his I94, so he does not have unlawful presence. He is out of status (because he didn't respect the visa conditions) but he does not have unlawful presence.  From the INA "Individuals who are admitted to the U.S. as F1 students for the duration of status (“D/S”) do not begin to accumulate unlawful presence unless/until there is an official finding that the student has fallen out of status by either an Immigration Judge or U.S. Citizenship an Immigration Services (“USCIS”).  The act of dropping out of school alone does not begin the accumulation of unlawful presence."

Yup, that's right.

 

I'll just add that the likelihood of getting a new visa, on the other hand, is another issue. The overstay will still be a factor...just not an outright 3/10 year bar.

[maryLu 58]

13 minutes ago, geowrian said:

Yup, that's right.

 

I'll just add that the likelihood of getting a new visa, on the other hand, is another issue. The overstay will still be a factor...just not an outright 3/10 year bar.

Yup, very low chances of getting a new NIV,  but it shouldn'tbe a problem for an IV.

[Najdian 1]

Thank you all for your help, I really appreciate it. For the record and for people who have similar issues, he left the country and re-entered successfully. 

[maryLu 58]

1 hour ago, Najdian said:

Thank you all for your help, I really appreciate it. For the record and for people who have similar issues, he left the country and re-entered successfully. 

Congratulations.  Than you for the update