Do I need a waiver

[SalishSea 18,148]

The lawyer is wrong.  The period of time from May 28, 2016 and when your mother filed the I-485 (July 25, 2019) counts towards unlawful status.  You have a 10 year bar, and you will need a waiver to overcome the bar.

[Boiler 46,125]

Seems pretty straightforward 

Good luck

[MADE24 5]

17 minutes ago, Jorgedig said:

The lawyer is wrong.  The period of time from May 28, 2016 and when your mother filed the I-485 (July 25, 2019) counts towards unlawful status.  You have a 10 year bar, and you will need a waiver to overcome the bar.

Okay so do I have to wait until the interview to file for a waiver or after?

[Boiler 46,125]

17 minutes ago, Jorgedig said:

The lawyer is wrong.  The period of time from May 28, 2016 and when your mother filed the I-485 (July 25, 2019) counts towards unlawful status.  You have a 10 year bar, and you will need a waiver to overcome the bar.

Not enough info, duration of status and age and possibly other things 

[MADE24 5]

1 minute ago, Boiler said:

Seems pretty straightforward 

Good luck

So do you think there’s a chance on a visa or do I have to put my mind on a waiver

[Boiler 46,125]

Just now, MADE24 said:

So do you think there’s a chance on a visa or do I have to put my mind on a waiver

Your lawyer presumably knows the details of your case I do not.

[MADE24 5]

Just now, Boiler said:

Not enough info, duration of status and age and possibly other things 

 I was 18 in 2017 when I filed my I 130, according to Uscis I was out of status in June 2016 when I dropped out of school. And I’m currently under the cspa law

[Boiler 46,125]

Well you do not start accruing illegal presence until you are 18

[MADE24 5]

3 minutes ago, Boiler said:

Well you do not start accruing illegal presence until you are 18

Okay, thank you so much for answering my questions. so for a year and few months it’s considered illegal presence, does it still affect the case negatively or makes it worse than it is?

[MADE24 5]

Thank you everyone for answering my questions thank you so much.

[Kai G. Llewellyn 838]

F-1 unlawful presence accrual is a bit of a confusing beast due to policy changes. In sum, if you left your course of study before Aug 9th 2018, you would not start accruing unlawful presence until one of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the student/scholar violated their non-immigrant status while adjudicating a request for another immigration benefit;
• The day after the I-94 record expires (if date certain, this does not pertain to Duration of Status)
• The day after an immigration judge ordered the student/scholar excluded, deported, or removed (whether or not the decision is appealed).

After Aug 9th, you fall out of status for not continuing your studies, unlawful presence starts accruing the day after the study was stopped:

• The day after the F visa holder no longer pursues the course of study
• The day after they engage in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus an authorized grace period, as outlined in 8 CFR 214.2). Visa holders who have successfully completed their course of study have a 60 day grace period after the completion of their program
• The day after the I-94 record expires (if date certain, this does not pertain to Duration of Status)
• The day after an immigration judge ordered the student/scholar excluded, deported, or removed (whether or not the decision is appealed).

Those who failed to maintain status before Aug 9th and continued to fail to maintain that lawful status started accruing unlawful presence following Aug 9th 2018. Given that OP left studies before that date, they would have been accruing unlawful presence the days following Aug 9th 2018. My source for this is Yale's site, so take it with a pinch of salt as this is a secondary source: https://oiss.yale.edu/immigration/f-1-students/maintaining-legal-status/unlawful-presence-policy-for-f-1-students

 

The time between Aug 9th 2018 and the date when OP filed the I-485 would be the amount of days of unlawful presence and dictate the bar, plus the days following the denial of the I-485 that OP remained in the US. That being said, I can't remember if the 'authorized stay' during I-485 processing becomes unlawful if the case is ultimately denied because there was a bar to adjustment. If someone could clarify that, it'd be helpful.

 

OP, what date was the I-485 filed?

 

EDIT: Ah the lawyer mentioned that OP had stayed 128 days beyond the denial of the I-485. So chances are yes, 10 year bar when factoring in time between Aug 9th 2018 and the I-485 filing date too.

Edited December 20, 2021 by Kai G. Llewellyn

[MADE24 5]

7 minutes ago, Kai G. Llewellyn said:

F-1 unlawful presence accrual is a bit of a confusing beast due to policy changes. In sum, if you left your course of study before Aug 9th 2018, you would not start accruing unlawful presence until one of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the student/scholar violated their non-immigrant status while adjudicating a request for another immigration benefit;
• The day after the I-94 record expires (if date certain, this does not pertain to Duration of Status)
• The day after an immigration judge ordered the student/scholar excluded, deported, or removed (whether or not the decision is appealed).

After Aug 9th, you fall out of status for not continuing your studies, unlawful presence starts accruing the day after the study was stopped:

• The day after the F visa holder no longer pursues the course of study
• The day after they engage in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus an authorized grace period, as outlined in 8 CFR 214.2). Visa holders who have successfully completed their course of study have a 60 day grace period after the completion of their program
• The day after the I-94 record expires (if date certain, this does not pertain to Duration of Status)
• The day after an immigration judge ordered the student/scholar excluded, deported, or removed (whether or not the decision is appealed).

Those who failed to maintain status before Aug 9th and continued to fail to maintain that lawful status started accruing unlawful presence following Aug 9th 2018. Given that OP left studies before that date, they would have been accruing unlawful presence the days following Aug 9th 2018. My source for this is Yale's site, so take it with a pinch of salt as this is a secondary source: https://oiss.yale.edu/immigration/f-1-students/maintaining-legal-status/unlawful-presence-policy-for-f-1-students

 

The time between Aug 9th 2018 and the date when OP filed the I-485 would be the amount of days of unlawful presence and dictate the bar, plus the days following the denial of the I-485 that OP remained in the US. That being said, I can't remember if the 'authorized stay' during I-485 becomes unlawful if the case is ultimately denied. If someone could clarify that, it'd be helpful.

 

Thank you so much, 

I checked my then i 94 and it’s just shows D/S not a particular date for the expiry date.

I was not ordered to be removed or deported by any immigration judge I left on my own will.

[Kai G. Llewellyn 838]

12 minutes ago, MADE24 said:

Thank you so much, 

I checked my then i 94 and it’s just shows D/S not a particular date for the expiry date.

I was not ordered to be removed or deported by any immigration judge I left on my own will.

Unfortunately, per my edit, I think you do have a 10 year bar due to the unlawful presence between Aug 9th 2018 and the date you filed I-485 and then the days you remained past the I-485 denial. You'll need to find a lawyer who specializes in waivers. The US Consulate will for sure confirm if the bar applies to you.

Edited December 20, 2021 by Kai G. Llewellyn

[SalishSea 18,148]

1 hour ago, MADE24 said:

So do you think there’s a chance on a visa or do I have to put my mind on a waiver

You will need a waiver.   You will need to demonstrate exceptional hardship to a qualifying USC or LPR relative.   The entire process will take years.

[Boiler 46,125]

I am intrigued how you got a work visa in Canada