Do I need a waiver

[Demise 1,295]

Okay I'll hit this from a slightly different angle. Also there's a lot of misinformed answers here but the peculiarities of overstays for F-1 students aren't really a very known topic.

 

Was your I-94 issued for Duration or Stay or D/S?

If yes, when was your I-485 denied and when did you depart US?

 

Persons admitted for D/S do not accrue unlawful presence until there's a formal finding of status violation either by USCIS in course of a benefit application (like an I-485 for AOS) or by an immigration judge.

If you stayed in US after I-485 denial:

For less than 180 days, then there's no ban. You will need to relevant sections from the foreign policy manual to outline how unlawful presence worked in your case.

For 180 days or more but less than 1 year, then it's a 3 year ban.

For 1 year or more then it's a 10 year ban.

 

If you are in fact banned then yes you will need a waiver. You will go to the interview, get denied, and then file I-601. You do have a qualifying relative in your mother so you are statutory eligible for it but you'll still have to prove that your extended absence from US will cause your mother "extreme hardship" and you know, get a good lawyer who knows how to do waivers.

 

https://www.nafsa.org/professional-resources/browse-by-interest/accrual-unlawful-presence-and-f-j-and-m-nonimmigrants

Edited December 20, 2021 by Demise

[MADE24 3]

16 minutes ago, Demise said:

Okay I'll hit this from a slightly different angle. Also there's a lot of misinformed answers here but the peculiarities of overstays for F-1 students aren't really a very known topic.

 

Was your I-94 issued for Duration or Stay or D/S?

If yes, when was your I-485 denied and when did you depart US?

 

Persons admitted for D/S do not accrue unlawful presence until there's a formal finding of status violation either by USCIS in course of a benefit application (like an I-485 for AOS) or by an immigration judge.

If you stayed in US after I-485 denial:

For less than 180 days, then there's no ban. You will need to relevant sections from the foreign policy manual to outline how unlawful presence worked in your case.

For 180 days or more but less than 1 year, then it's a 3 year ban.

For 1 year or more then it's a 10 year ban.

 

If you are in fact banned then yes you will need a waiver. You will go to the interview, get denied, and then file I-601. You do have a qualifying relative in your mother so you are statutory eligible for it but you'll still have to prove that your extended absence from US will cause your mother "extreme hardship" and you know, get a good lawyer who knows how to do waivers.

 

https://www.nafsa.org/professional-resources/browse-by-interest/accrual-unlawful-presence-and-f-j-and-m-nonimmigrants

Okay so my i94 issued for D/S and after my i485 was denied I was told to file for a motion which was also denied I left after the motion was denied 

[Demise 1,295]

Just now, MADE24 said:

Okay so my i94 issued for D/S and after my i485 was denied I was told to file for a motion which was also denied I left after the motion was denied 

Give me the timeline.

[Crazy Cat 41,978]

I assume the Consulate Officer will have the exact dates, and will render a decision at that time. 

[MADE24 3]

20 minutes ago, Demise said:

Give me the timeline.

came into the United States in January 16 2016, I dropped out of school in May 

I filed for the i130 in February 9 2017 

it was approved 2019 

I filed for the i485 in 2019 July 24

It was denied July 31st 2020 because I was out of status

i began the process of filing for a motion August 2020 was denied in November then left the US December 6th 2020.

[Demise 1,295]

10 minutes ago, MADE24 said:

came into the United States in January 16 2016, I dropped out of school in May 

I filed for the i130 in February 9 2017 

it was approved 2019 

I filed for the i485 in 2019 July 24

It was denied July 31st 2020 because I was out of status

i began the process of filing for a motion August 2020 was denied in November then left the US December 6th 2020.

You are one lucky guy or girl. You've only got ~129 days of unlawful presence meaning no re-entry bar meaning you do not need a waiver. In your case it starts counting at the time USCIS found you violated your status which in this case was when they denied the I-485 and runs until you've departed.

 

Do print out 9 FAM 302.11-3(b)(1), since the subsection (d) relates to your circumstances. Probably won't need it but I think it's better to over-prepare and be able to go "No you are wrong because here it says...".

https://fam.state.gov/FAM/09FAM/09FAM030211.html#M302_11_3_B_1

Edited December 21, 2021 by Demise

[SalishSea 17,920]

A student admitted on an F-1 NIV who drops out of school (the basis for that visa) and is therefore out of status, does not accrue unlawful status?  Interesting.

 

Then why would anyone ever leave?

Edited December 21, 2021 by Jorgedig

[Demise 1,295]

4 minutes ago, Jorgedig said:

A student admitting on an F-1 NIV who drops out of school (the basis for that visa) and is therefore out of status, does not accrue unlawful status?  Interesting.

 

Then why would anyone ever leave?

Yeah it sounds weird but that's how it works. You are out of status but you do not accrue unlawful presence until USCIS or an IJ finds that you have violated your status, then it actually starts counting from the following day.

 

Every so often you'll find someone like OP that benefits from something like this which is mostly unknown and you can deliver some fantastic news.

Edited December 21, 2021 by Demise

[Crazy Cat 41,978]

I hope the OP lets us know what the CO says.

[MADE24 3]

23 minutes ago, Demise said:

You are one lucky guy or girl. You've only got ~129 days of unlawful presence meaning no re-entry bar meaning you do not need a waiver. In your case it starts counting at the time USCIS found you violated your status which in this case was when they denied the I-485 and runs until you've departed.

 

Do print out 9 FAM 302.11-3(b)(1), since the subsection (d) relates to your circumstances. Probably won't need it but I think it's better to over-prepare and be able to go "No you are wrong because here it says...".

https://fam.state.gov/FAM/09FAM/09FAM030211.html#M302_11_3_B_1

Thank you so much

thank you.

 But when you say until the Uscis finds out what does that mean ?

is it until the case was denied.

12 minutes ago, Crazy Cat said:

I hope the OP lets us know what the CO says.

Definitely in line for interview soon 

hopefully it goes well

[MADE24 3]

Thank you everyone for the help, I really appreciate it. 
do you guys suggest to take my old documents like the i94 , i120 forms etc from my old student visa documentation’s with me or just take the documents submitted to the NVC with me to the interview when it’s time?

[Demise 1,295]

Just now, MADE24 said:

Thank you so much

thank you.

 But when you say until the Uscis finds out what does that mean ?

is it until the case was denied.

Basically, the only way USCIS finds a status violation is if you apply for something with them and then get denied. That's when the unlawful presence timer starts.

 

So even though you've been out of status since May 2016, they didn't recognize it until your I-485 was denied on July 31st, 2020, that's when the timer for unlawful presence started for you, and it kept running until you've left 129 days later.

 

In fact if you wouldn't file I-485 and just departed for consular processing you'd have absolutely 0 days of unlawful presence.

[Demise 1,295]

Just now, MADE24 said:

Thank you everyone for the help, I really appreciate it. 
do you guys suggest to take my old documents like the i94 , i120 forms etc from my old student visa documentation’s with me or just take the documents submitted to the NVC with me to the interview when it’s time?

Bring them, worst case scenario you won't need them but ideally you want to prove the following:

You entered as an F-1 student and you were admitted for D/S.

USCIS denied your I-485 on July 31st, 2020, which is when your unlawful presence timer started.

You departed on December 6th, 2020, which is when your unlawful presence timer stopped.

[MADE24 3]

2 minutes ago, Demise said:

Basically, the only way USCIS finds a status violation is if you apply for something with them and then get denied. That's when the unlawful presence timer starts.

 

So even though you've been out of status since May 2016, they didn't recognize it until your I-485 was denied on July 31st, 2020, that's when the timer for unlawful presence started for you, and it kept running until you've left 129 days later.

 

In fact if you wouldn't file I-485 and just departed for consular processing you'd have absolutely 0 days of unlawful presence.

Wow! This is so new to me and such an helpful information.

Im source so many people are not aware of this and hopefully be of help To people. Thank you so much once again Demise 

[Kai G. Llewellyn 838]

7 hours 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 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.

I'd like to correct my previous bad advice (please accept my apologies on this) - A nationwide injunction cancelled the policy change. So the original rules are in effect. https://www.nafsa.org/sites/default/files/media/document/GuilfordPermanentInjunction_20200206.pdf

 

https://www.nafsa.org/professional-resources/browse-by-interest/accrual-unlawful-presence-and-f-j-and-m-nonimmigrants

 

Therefore it looks like OP has no reentry bar based on the above posts. One way or another you will find out when a Consular officer determines your admissibility.

 

 

Edited December 21, 2021 by Kai G. Llewellyn