Overstay F1 Covid 19 10 year bar

[OldUser 6,988]

10 minutes ago, Boiler said:

My understanding is that terminating SERVIS starts the clock

 

29 minutes ago, Boiler said:

No doubt SERVIS was terminated

 

It's SEVIS.

[Boiler 45,737]

I have been hanging with people who can not spell

[OldUser 6,988]

25 minutes ago, Boiler said:

I have been hanging with people who can not spell

Sorry, I only did this so it would help search engines and whoever is looking a similar question in the future.

[limegreenbowler 45]

1 hour ago, Demise said:

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).

You are the only person correctly noting that the 2018 attempted policy change was struck down and that the old policy, i.e. that people admitted D/S do not begin to accrue ULP until a determination of that is made by an IJ or USCIS official, is still in force. A SEVIS termination is done by the university's Responsible Officer, not a USCIS official, and so it currently doesn't count. If you ask me, this is all very ridiculous, but it's how the law currently works. It's also not very well known, and plenty of consular officers make this error all the time, but there is basically no legal recourse for an NIV denial, so no one really cares. All that said, OP was almost certainly (and deservedly) also refused 214(b), which is unwaivable, and even if he hadn't gotten the formal ten year ban, it's highly unlikely that he would have gotten another NIV for many years due to his egregious misuse.

 

If OP does (legitimately) marry a US citizen or LPR, he can present evidence at his IV interview that the 9B2 finding was made in error. There is more time allotted for IV interviews, and the officer, if they aren't familiar with the rule, will likely request an opinion from the State Department's Legal Office, which will come back that the finding was made in error (unless the regulations are changed retroactively by then, which is unlikely).

 

If OP's LPR parents are petitioning him, there's really no reason to argue about it as the incorrectly applied bar will have expired by then anyway--F2A hasn't moved from a PD of April 2015 in more than a year, so it's looking like at least a ten year wait for a new PD to become current.

[Redro 4,611]

@Demise might be 100% correct but that doesn't matter... 

OP was not given the opportunity to file a waiver or argue their case. 

This is problem with B1/B2 visa applications... the CO has the final say and even if OP had no intention of remaining in the US we can see how OP's ties to the US are stronger than their ties to their home country.

They have a sibling and two parents in the US and at least 2 family members passed away in the US.

OP did not return to their home country for a few years after they no longer were in school - they were only supposed to be in the US for studying... but we learn they have family in the US so another reason to remain there... 

B1/B2 was probably rightfully denied (if we are impartial judges) but it might have been denied for the wrong reasons- immigrant intent vs 10 year bar

 

ETA: There was a case a few months ago, a USC petitioned his parents from overseas. They had worked in the US without authorization. CO decided they had a BAR... after a lot of back and forth CO finally agreed the bar did not apply as they were immediate relatives. OP is not going to overcome this issue unless they are being petitioned for an immigrant visa. 

Edited April 28, 2023 by ROK2USA

[Demise 1,304]

@ROK2USA

@limegreenbowler

Yeah I do agree that B-2 would've likely been denied anyways for immigrant intent, but everyone here was like "well try again in 2032 then".

[Redro 4,611]

8 minutes ago, Demise said:

@ROK2USA

@limegreenbowler

Yeah I do agree that B-2 would've likely been denied anyways for immigrant intent, but everyone here was like "well try again in 2032 then".

It is why people suggest you don’t leave the US even if you are out of status. CO At embassy has a lot of discretion and arguing your case for a non immigrant visa is pretty impossible

i think a few people were saying trying in 10 years would amount to nothing and that’s why  we are talking about immigrant visas… 

[coolcat20 5]

On 4/27/2023 at 5:48 PM, Crazy Cat said:

Yes.  That is due to the number of people already in the queue for individual countries. 

Got it. Any idea how it's looking for Sweden?

[coolcat20 5]

16 hours ago, ROK2USA said:

@Demise might be 100% correct but that doesn't matter... 

OP was not given the opportunity to file a waiver or argue their case. 

This is problem with B1/B2 visa applications... the CO has the final say and even if OP had no intention of remaining in the US we can see how OP's ties to the US are stronger than their ties to their home country.

They have a sibling and two parents in the US and at least 2 family members passed away in the US.

OP did not return to their home country for a few years after they no longer were in school - they were only supposed to be in the US for studying... but we learn they have family in the US so another reason to remain there... 

B1/B2 was probably rightfully denied (if we are impartial judges) but it might have been denied for the wrong reasons- immigrant intent vs 10 year bar

 

ETA: There was a case a few months ago, a USC petitioned his parents from overseas. They had worked in the US without authorization. CO decided they had a BAR... after a lot of back and forth CO finally agreed the bar did not apply as they were immediate relatives. OP is not going to overcome this issue unless they are being petitioned for an immigrant visa. 

Thank you for your input. 
My documents that I had brought with me (and never was given the opportunity to present because the interview quite literally was over in 30 seconds) showed I have property in my home country, 1 business that I run, more immediate family, an ongoing master program at university and more evidence.

[coolcat20 5]

17 hours ago, limegreenbowler said:

You are the only person correctly noting that the 2018 attempted policy change was struck down and that the old policy, i.e. that people admitted D/S do not begin to accrue ULP until a determination of that is made by an IJ or USCIS official, is still in force. A SEVIS termination is done by the university's Responsible Officer, not a USCIS official, and so it currently doesn't count. If you ask me, this is all very ridiculous, but it's how the law currently works. It's also not very well known, and plenty of consular officers make this error all the time, but there is basically no legal recourse for an NIV denial, so no one really cares. All that said, OP was almost certainly (and deservedly) also refused 214(b), which is unwaivable, and even if he hadn't gotten the formal ten year ban, it's highly unlikely that he would have gotten another NIV for many years due to his egregious misuse.

 

If OP does (legitimately) marry a US citizen or LPR, he can present evidence at his IV interview that the 9B2 finding was made in error. There is more time allotted for IV interviews, and the officer, if they aren't familiar with the rule, will likely request an opinion from the State Department's Legal Office, which will come back that the finding was made in error (unless the regulations are changed retroactively by then, which is unlikely).

 

If OP's LPR parents are petitioning him, there's really no reason to argue about it as the incorrectly applied bar will have expired by then anyway--F2A hasn't moved from a PD of April 2015 in more than a year, so it's looking like at least a ten year wait for a new PD to become current.

So to clarify: I was admitted as D/S, with no end date. Yes, the SEVIS was terminated by a university official. I was never in removing proceedings or brought ahead of a IJ/IO. I found out about the bar by the consulate officer. 

[coolcat20 5]

20 hours 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

Yes, D/S with no specific date. Never was brought in front of a IJ/IO, was never in removal proceedings as I departed on my own. The SEVIS was terminated by a university official.

[coolcat20 5]

On 4/27/2023 at 5:51 PM, Boiler said:

That one the lady would have thought you had a compelling case such that she would have recommended you for it, can happen, obviously with such a recent egregious case it was not applicable.

For example Mexico, a very long wait.

In this case it is Sweden.

[Demise 1,304]

4 minutes ago, coolcat20 said:

Yes, D/S with no specific date. Never was brought in front of a IJ/IO, was never in removal proceedings as I departed on my own. The SEVIS was terminated by a university official.

So yeah there's no bar due to how unlawful presence is calculated in your case (i.e. it wasn't). You probably won't ever be able to get a tourist visa because you'd have to prove significant connections to your home country, but for any other visa like a work visa, or a family or work sponsorship or you win the DV lottery, it shouldn't be an issue, you might have to bring a copy of the policy manual sections I cited previously and have someone higher up look at your case. Consulates are notoriously bad with this stuff.

 

You can have your family petition for you, you can see if they have some connections that could get you an H-1B or an EB-3, or you can try to win the DV lottery. Lottery is free so like, if you can play it why not?

Edited April 28, 2023 by Demise

[coolcat20 5]

1 minute ago, Demise said:

So yeah there's no bar due to how unlawful presence is calculated in your case (i.e. it wasn't). You probably won't ever be able to get a tourist visa because you'd have to prove significant connections to your home country, but for any other visa like a work visa, or a family or work sponsorship or you win the DV lottery.

 

You can have your family petition for you, you can see if they have some connections that could get you an H-1B or an EB-3, or you can try to win the DV lottery. Lottery is free so like, if you can play it why not?

That sounds great overall, but shouldn't the CO have been informed about how that policy works? Because then I obviously shouldn't have been given this ban in the first place. 

Now if it is in their system (probably, right?), how does that get removed if you cannot appeal the CO's decision? 

If any of those options you presented were to be filed: wouldn't the 10 year bar, if in the system, just lead to a denial?

Just trying to understand how I don't have a bar according to your understanding, but the CO was so direct and quick to tell me I did.

[Demise 1,304]

1 minute ago, coolcat20 said:

That sounds great overall, but shouldn't the CO have been informed about how that policy works? Because then I obviously shouldn't have been given this ban in the first place. 

Now if it is in their system (probably, right?), how does that get removed if you cannot appeal the CO's decision? 

If any of those options you presented were to be filed: wouldn't the 10 year bar, if in the system, just lead to a denial?

Just trying to understand how I don't have a bar according to your understanding, but the CO was so direct and quick to tell me I did.

Yeah they should've been informed but things like this don't come up often so a lot of the rank and file employees don't know every intricacy of immigration law.

 

In this case you'd apply for something else, go to the interview, point out that the agent incorrectly concluded that you are subject to a 10 year bar, bring proof of your prior F-1 and admission for D/S, copy of the Foreign Policy Manual sections detailing how it works, and after having someone higher up look it over which might have to involve them getting a legal opinion from DC, you should be approved.

 

They will schedule an interview regardless because if there's some inadmissibility reasons that'd require a waiver you actually need a denial from the consulate to file a waiver with USCIS. I-601 for unlawful presence is generally: go to interview, get denied, file I-601, once approved go to another interview and get approved. Moot point just letting you know that they will interview regardless.

Edited April 28, 2023 by Demise