Overstay F1 Covid 19 10 year bar

[SalishSea 17,803]

4 hours ago, coolcat20 said:

Ouch. That's a long time. 

Now if it would come to marrying a USC, how would that process look like in terms of the ban and waiver? And processing time?

That makes sense. Thanks

You’re getting into TOS and fraud territory now.   I’m out.

 

FYI, marrying a USC in order to get an immigration visa is 100% FRAUD, and something the consulate will be looking at, given that you now have an inadmissibility for overstay.

Edited April 27, 2023 by SalishSea

[Demise 1,277]

8 hours ago, coolcat20 said:

Hello all,

 

I entered the US in 2016 on a F1 visa. I have during this time gotten a degree, and traveled in and out of the US without any issues (originally from Europe).

After arriving the last time back in the US in dec 2019 to start completing my second degree in Jan 2020, covid-19 pandemic hit and caused a total lockdown in California.

Since I have an immediate family member who is a USC, I stayed with him to continue my studies until Fall 2020. Due to the pandemic and a close death of another USC family member in our family, I ended up not being able to continue my studies and my student visa was terminated. 

So, against my better judgement I ended up overstaying until July 2022 and departing on my own. 

This week, I went to the US Embassy to apply for a B1/B2 visa in order to see my family. I brought all required documents to show my ties to my home country and everything else that was needed. Upon meeting the consular officer, she took one look at my profile, asked about my previous history in the US. She did neither ask or look at any of my documents I had brought. When she asked about my terminated student visa, I answered truthfully. She then rolled her eyes at me. I felt so humiliated. Then she typed a bunch of things on the keyboard, printed a paper and told me the B1/B2 visa was denied, and verbally told me I had a 10 year bar and they can reassess my situation in 2032. 

She also handed me a paper of the bar saying crossed out "alien unlawfully present".

 

Visa journey fam,

What can I do? What is my next step?

 

Thank you

Were you admitted for D/S or until a specific date. If D/S then the 10 year ban does not apply and the consulate erred in the decision, doesn't mean you'd get the visa, but the bar just shouldn't apply:

https://www.uscis.gov/sites/default/files/document/memos/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

[carmel34 3,620]

16 minutes ago, Demise said:

Were you admitted for D/S or until a specific date. If D/S then the 10 year ban does not apply and the consulate erred in the decision, doesn't mean you'd get the visa, but the bar just shouldn't apply:

https://www.uscis.gov/sites/default/files/document/memos/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

I disagree.  OP stated (see below) that studies were stopped in Fall 2020.  D/S means "duration of status," so an F-1 visa holder can continue in the US until completion of the degree.  As long as the terms of the student visa are being followed, the holder can stay lawfully in the US.  In this case, OP was not in compliance with the terms of the F-1 visa from early 2021 until departing in July of 2022, hence triggering the 10-year bar.  The consular officer did not err.

 

"Since I have an immediate family member who is a USC, I stayed with him to continue my studies until Fall 2020. Due to the pandemic and a close death of another USC family member in our family, I ended up not being able to continue my studies and my student visa was terminated. 

So, against my better judgement I ended up overstaying until July 2022 and departing on my own." 

Edited April 27, 2023 by carmel34

[Chancy 6,241]

19 minutes ago, Demise said:

Were you admitted for D/S or until a specific date. If D/S then the 10 year ban does not apply and the consulate erred in the decision, doesn't mean you'd get the visa, but the bar just shouldn't apply:

https://www.uscis.gov/sites/default/files/document/memos/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

 

That memo you linked states that F student visa holder accrues unlawful presence when they fail to maintain their non-immigrant status, even if they were admitted as D/S.

 

Quote

The new policy clarifies that F, J, and M nonimmigrants, and their dependents, admitted or otherwise authorized to be present in the United States in duration of status (D/S) or admitted until a specific date (date certain), start accruing unlawful presence as outlined below.

[...]

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

• The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity; [...]

 

The consulate was correct in the OP's case -- 10-year ban applies.

 

8 hours ago, coolcat20 said:

Since I have an immediate family member who is a USC, I stayed with him to continue my studies until Fall 2020. Due to the pandemic and a close death of another USC family member in our family, I ended up not being able to continue my studies and my student visa was terminated.

 

[carmel34 3,620]

5 hours ago, coolcat20 said:

Now if it would come to marrying a USC, how would that process look like in terms of the ban and waiver? And processing time?

Marrying a US citizen only for the immigration benefits is fraud.  Don't do this.  It would lead to a lifetime ban.

[Demise 1,277]

8 minutes ago, carmel34 said:

I disagree.  OP stated (see below) that studies were stopped in Fall 2020.  D/S means "duration of status," so an F-1 visa holder can continue in the US until completion of the degree.  As long as the terms of the student visa are being followed, the holder can stay lawfully in the US.  In this case, OP was not in compliance with the terms of the F-1 visa from early 2021 until departing in July of 2022, hence triggering the 10-year bar.

 

"Since I have an immediate family member who is a USC, I stayed with him to continue my studies until Fall 2020. Due to the pandemic and a close death of another USC family member in our family, I ended up not being able to continue my studies and my student visa was terminated. 

So, against my better judgement I ended up overstaying until July 2022 and departing on my own." 

Disagree all you want but that doesn't change the fact as to how this all works. Unlawful presence after a D/S overstay doesn't start ticking until there's a formal finding of it by USCIS or an immigration judge, and these findings only happen in one of two cases:

1. You apply for something with USCIS (like AOS) and get denied.

2. You end up in removal proceedings and get a removal order.

Then it starts counting from the following day. If it were to happen today first day of unlawful presence would be tomorrow and the unlawful presence bans would come into play after departure after staying in US for another 180+ days.

 

If there's no unlawful presence then there's no bar.

Edit:

@Chancy Yeah hold on I'm a moron, let me get you the right one... Sorry about that one, the one I wanted to use got put behind a login so I figured I'd look right for the source.

 

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

Text to get around login requirements:

Quote

Update. On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunction blocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The court's order states:

"The United States Citizenship and Immigration Services' August 9, 2018 memorandum entitled "Accrual of Unlawful Presence and F, J, and M Nonimmigrants" (PM-602-1060.1), as well as the corresponding memorandum with the same title issued on May 10, 2018 (PM-602-1060), are hereby declared invalid, set aside, and enjoined nationwide in all applications."

On July 31, 2020 DHS filed a motion to dismiss its own appeal of the lower court's decision. The appeals court granted that motion and dismissed the appeal on August 3, 2020.

USCIS has returned to applying prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.

Advisers should still counsel students to consult an experienced immigration lawyer if they have questions about how the unlawful presence rules impact their individual situations.

Litigation Notes

On October 23, 2018, a group of colleges and universities filed suit in U.S. District Court to challenge USCIS's F, M, and J unlawful presence policy. The plaintiffs asked the court to declare unlawful and vacate the August 2018 policy memo, and to enjoin the enforcement or application of the memo.

Read the complaint (10/23/2018). Guilford College et al v. Nielsen et al., Civil Action No. 18-891, filed in the United States District Court for the Middle District of North Carolina
Amended complaint (12/14/2018)
Plaintiffs' motion for a preliminary injunction (12/14/2018)
Amicus Curiae brief (friend of the court) filed by numerous institutions of higher education and supported by NAFSA (12/21/2018)
Temporary Restraining Order in the Guilford College et al. v. DHS case (01/28/2019)
Preliminary injunction opinion and order in the Guilford College et al. v. DHS case (05/03/2019)
Permanent injunction opinion and order in the Guilford College et al. v. DHS case (02/06/2020)

On February 6, 2020, the Court granted the plaintiff's motion for partial summary judgment, denied the Government's motion for summary judgment, and declared the August 2019 policy invalid, set aside, and permanently enjoined nationwide in all applications. On April 3, 2020 DHS appealed to the Fourth Circuit Court of Appeals, but on July 31, 2020 DHS filed a motion to dismiss its own appeal of the lower court's decision, and the appeals court granted that motion and dismissed the appeal on August 3, 2020.
Future Rulemaking

A DHS proposed rule titled "Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions" appears in the Spring 2020 Regulatory Agenda with a target date of 03/00/2021. DHS/USCIS, RIN 1615-AC46. DHS/USCIS had published this item for the first time in the Fall 2019 regulatory agenda. It appears related to the agency's attempt to revise its unlawful presence policy via policy memo, which was blocked in Federal court. See NAFSA's unlawful presence litigation page for background. As one element of the litigation involves the Administrative Procedure Act (APA), this proposed rule may be a tactic to resolve any APA issues by going through the public notice and comment rulemaking procedure.

Title: Enhancing the Integrity of the Unlawful Presence Inadmissibility Provisions. Abstract: "The three- and ten-year bars to admissibility of section 212(a)(9)(B)(i) of the Immigration and Nationality Act (the Act) and the permanent bar to admissibility of section 212(a)(9)(C)(i)(I) of the Act were added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Div. C of Pub. L. 104-208 (September 30, 1996) (IIRIRA)). The amendments enacting sections 212(a)(9)(B) and (C) became effective on April 1, 1997. To date, DHS has not implemented regulations describing how unlawful presence accrues for the purposes of 212(a)(9)(B)(i) and (C)(i)(I). DHS intends to propose regulations to this effect, which may include or expand upon certain current agency policies, including whether certain failures to abide by the conditions of admission as a nonimmigrant can result in accrual of unlawful presence. Further, DHS intends to address how aliens subject to inadmissibility under 212(a)(9)(B)(i) and (C)(i)(I) may be admitted to the United States after remaining outside the United States for the required period of time."

Background

USCIS published a draft policy memorandum on May 11, 2018, and accepted public comments until June 11, 2018. NAFSA submitted a comment letter on May 24, 2018. On August 9, 2018, the USCIS Feedback Updates page indicated that USCIS received 297 comments during the comment period, and that it was "reviewing your comments and will consider them before issuing final guidance." USCIS then published a final policy memorandum late that same evening.

The original USCIS new release stated that, "[t]his policy aligns with President Trump's Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018." The news release also recapped how INA 212(a)(9)(B) and (C) would have functioned under the memo:

"Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the three-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief."

The statutory provisions that created the penalties for "unlawful presence" were added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the August 2018 policy, however, USCIS changed the way it "counts" days of unlawful presence for F-1, F-2, M-1, M-2, J-1, and J-2 nonimmigrants.

Under prior policy, which had been in place for 20 years, the unlawful presence count began only after a formal finding of a status violation by a DHS officer in the course of a benefits application, or by an immigration judge in the course of removal proceedings.
Under the policy described in USCIS's August 2018 memo that is now enjoined, unlawful presence would have begun to accrue:
the day after a status violation, if the violation occurred on or after August 9, 2018
on August 9, 2018, if the violation occurred prior to August 9, 2018
Under both the current and enjoined policies:
Remaining in the United States beyond the expiration of a date-specific Form I-94 also starts the unlawful presence clock; and
There are a number of important exceptions, such as unlawful presence not being counted while USCIS adjudicates an F-1 student's timely-filed application for reinstatement
Because of the May 3, 2019 preliminary injunction followed by the February 6, 2020 permanent injunction, USCIS will continue to apply its prior policy, articulated in the unlawful presence memo issued on May 6, 2009.
Remember that being "out of status" and being "unlawfully present" are two different concepts and conditions! A violation of nonimmigrant status still puts an individual "out of status" and subject to removal from the United States, even though "unlawful presence" may not have started being counted. Advisers should still counsel students to consult an experienced immigration lawyer if they have questions about or need strategies to deal with unlawful presence and status violations in their individual situation.

Injunction in question:

https://www.uscis.gov/sites/default/files/document/injunctions/Guilford-College-v.-Nielsen-summary-judgment-permanent-injunction.pdf

 

 

Edited April 27, 2023 by Demise

[Demise 1,277]

So yeah to summarize and undo the mess I made:

There was a memo that would make unlawful presence in case of D/S admitted non-immigrants start counting as of the day they drop out: https://www.uscis.gov/sites/default/files/document/memos/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf

That memo got tied up in a lawsuit where a court issued a permanent injunction stopping it and returning to a prior 2009 policy: https://www.uscis.gov/sites/default/files/document/injunctions/Guilford-College-v.-Nielsen-summary-judgment-permanent-injunction.pdf

The 2009 memo that came back into effect: https://www.uscis.gov/sites/default/files/document/memos/revision_redesign_AFM.PDF

USCIS did appeal the decision to the 4th circuit but withdrew the appeal later leaving 2009 memo as the current state of affairs.

 

So yeah, we're here because the source I wanted to use decided to put the document I had saved behind a login so I grabbed something else without reading it fully. Back to the topic at hand I guess.

 

[SalishSea 17,803]

1 hour ago, Demise said:

Disagree all you want but that doesn't change the fact as to how this all works. Unlawful presence after a D/S overstay doesn't start ticking until there's a formal finding of it by USCIS or an immigration judge, and these findings only happen in one of two cases:

1. You apply for something with USCIS (like AOS) and get denied.

2. You end up in removal proceedings and get a removal order.

Then it starts counting from the following day. If it were to happen today first day of unlawful presence would be tomorrow and the unlawful presence bans would come into play after departure after staying in US for another 180+ days.

 

If there's no unlawful presence then there's no bar.

Edit:

@Chancy Yeah hold on I'm a moron, let me get you the right one... Sorry about that one, the one I wanted to use got put behind a login so I figured I'd look right for the source.

 

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

Text to get around login requirements:

Injunction in question:

https://www.uscis.gov/sites/default/files/document/injunctions/Guilford-College-v.-Nielsen-summary-judgment-permanent-injunction.pdf

 

 

USCIS and DOS are different agencies, with different rules and guidelines.  It could have been different had OP stayed, and been subject to USCIS rules.  

[Demise 1,277]

19 minutes ago, SalishSea said:

USCIS and DOS are different agencies, with different rules and guidelines.  It could have been different had OP stayed, and been subject to USCIS rules.  

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

 

9 FAM 302.11-3(B)(1)(b)(2):

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:

(2) For individuals inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue the day after the formal finding is made;

 

9 FAM 302.11-3(B)(1)(d):

For persons who have been admitted for duration of status (DOS) (as is usually the case with individuals in A, G, F, J, and I visa status), unlawful presence will not accrue unless DHS, IJ, or the BIA finds a status violation in the context of a request for an immigration benefit or during removal proceedings.  This finding of status violation by the DHS, an IJ, or the BIA will cause a period of "unlawful presence" to begin.  In DOS cases where DHS or an IJ or the BIA makes a formal status violation finding, the individual begins accruing unlawful presence on the day after the finding (i.e., the date the finding was published /communicated).  For example, if an applicant presents a letter from DHS dated December 1, 2008, that says the applicant was out of status starting on May 28, 2001, the applicant began to accrue unlawful presence as of December 2, 2008, not May 28, 2001.

 

In fact I'm not sure if the 2018 policy ever applied to the DOS but I suspect that it did because it's up to DHS to define what is and isn't unlawful presence. Moreover the bars don't trigger until after departure which would create a weird scenario where literally the only people who the DHS memo would apply to would be those who'd fall out of the F-1 status, depart, and then return to US legally somehow (e.g. via 212(d)(3) waiver).

Edited April 27, 2023 by Demise

[Boiler 45,449]

No doubt SERVIS was terminated

 

Anyway all moot, Consulate have said so.

[SalishSea 17,803]

1 minute ago, Boiler said:

No doubt SERVIS was terminated

 

Anyway all moot, Consulate have said so.

Right, and their decision cannot be appealed.

[Demise 1,277]

6 minutes ago, SalishSea said:

Right, and their decision cannot be appealed.

I imagine it could be re-visited down the line as a part of some other visa application, in case of which OP should bring proof of admission for D/S and copy of the relevant parts of the AFM. Getting a tourist visa after any overstay is hard, but the ban should not be an issue for a work visa or a family petition. Like none of you knew this is the policy, you think the low level government drone knows about it?

[dwheels76 5,468]

7 hours ago, beloved_dingo said:

A sibling petition will take longer than 9 years.

 

LPR parent for unmarried child will take less time. I believe around 4 years total? Others more knowledgeable can correct me on that point. 

You aren't getting this from the visa bulletin. How can sibling be 9 years when they are at 08APR07. How can LPR filing for adult child be 3 or 4 when they are in 22SEP15. And we don't even know their country which if he's from any of the 4 other country's add another 10 to 15 years to that.

[Boiler 45,449]

Not sure about that, well a work visa would have the same issues.

 

My understanding is that terminating SERVIS starts the clock

[Demise 1,277]

5 minutes ago, Boiler said:

Not sure about that, well a work visa would have the same issues.

 

My understanding is that terminating SERVIS starts the clock

There is a memo from 2018 that planned to do so - clock would start once a D/S falls out of status. However that memo got struck down in court so an older memo from 2009 which states what I've been saying (clock starts once USCIS denies an application from you or when an IJ issues a removal order) remains controlling. So yeah, if D/S there's no ban and the government drone made an error.

Edited April 27, 2023 by Demise