Regarding being out of status and accruing unlawful presence

[nastra30 2,284]

As soon as the school terminated your sevis record, you are out of status meaning your I-20 is no longer valid (meaning D/S has ended). You dropped out of school violating the very purpose of F1 status. Your grace period to depart the US is 60 days after your status ends. Unlawful presence begins to accumulate after that. Easy case for a judge to slap side, so even if you were in US you'll have no recourse to stay. 

[Demise 1,281]

2 hours ago, nastra30 said:

As soon as the school terminated your sevis record, you are out of status meaning your I-20 is no longer valid (meaning D/S has ended). You dropped out of school violating the very purpose of F1 status. Your grace period to depart the US is 60 days after your status ends. Unlawful presence begins to accumulate after that. Easy case for a judge to slap side, so even if you were in US you'll have no recourse to stay. 

Unlawful presence doesn't start ticking for D/S admission until either:

1. USCIS makes a formal finding of being out of status while seeking some other benefit (e.g. denies AOS)

2. IJ enters a removal order

Then it starts ticking from the following day, so even if there's a formal finding, that finding is not retroactive giving one plenty of time to leave before a re-entry ban would become a problem (though in removal proceedings one should probably seek VD to avoid the bar associated with getting deported).

 

There was a period of time in 2018-2020 when the policy was that it starts counting from when one is out of status (i.e. when one drops out or the date on I-20 or DS-2019 has lapsed), however that was enjoined and later vacated and USCIS returned to a prior 2008 policy, so currently this memo is controlling: https://www.uscis.gov/sites/default/files/document/memos/revision_redesign_AFM.PDF. This part (status violation / unlawful presence inadmissibility)  wasn't migrated into the policy manual yet so old AFM remains controlling: https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm40-external.pdf (page 79). DOS's FAM has a similar section but digging through that is a pain.

 

So, OP isn't inadmissible for unlawful presence regardless of how long they've been out of status, but getting another F-1 after an overstay likely won't fly since it is not a dual-intent visa, and in general any prior status violations make getting any non-dual-intent visas exceptionally difficult since you have to prove that you won't just overstay again.

Edited September 10 by Demise

[yuithu 0]

2 hours ago, Demise said:

Unlawful presence doesn't start ticking for D/S admission until either:

1. USCIS makes a formal finding of being out of status while seeking some other benefit (e.g. denies AOS)

2. IJ enters a removal order

Then it starts ticking from the following day, so even if there's a formal finding, that finding is not retroactive giving one plenty of time to leave before a re-entry ban would become a problem (though in removal proceedings one should probably seek VD to avoid the bar associated with getting deported).

 

There was a period of time in 2018-2020 when the policy was that it starts counting from when one is out of status (i.e. when one drops out or the date on I-20 or DS-2019 has lapsed), however that was enjoined and later vacated and USCIS returned to a prior 2008 policy, so currently this memo is controlling: https://www.uscis.gov/sites/default/files/document/memos/revision_redesign_AFM.PDF. This part (status violation / unlawful presence inadmissibility)  wasn't migrated into the policy manual yet so old AFM remains controlling: https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm40-external.pdf (page 79). DOS's FAM has a similar section but digging through that is a pain.

 

So, OP isn't inadmissible for unlawful presence regardless of how long they've been out of status, but getting another F-1 after an overstay likely won't fly since it is not a dual-intent visa, and in general any prior status violations make getting any non-dual-intent visas exceptionally difficult since you have to prove that you won't just overstay again.

Thank you for your nice response. I just wanted to confirm this. So even if I didn't accrue any unlawful presence you are saying I won't get a visa? If I wanted to stay in the U.S. I could stay, right? I left when I have realized that it is against the law. Do you think this argument will make the visa officer grant me a visa? Or any other tips would be extremely helpful. 

[Demise 1,281]

7 minutes ago, yuithu said:

Thank you for your nice response. I just wanted to confirm this. So even if I didn't accrue any unlawful presence you are saying I won't get a visa? If I wanted to stay in the U.S. I could stay, right? I left when I have realized that it is against the law. Do you think this argument will make the visa officer grant me a visa? Or any other tips would be extremely helpful. 

I mean it all depends on your specific circumstances. Like why did you fall out of status (ideally due to no fault of your own) and whatever you have to return to in your country of origin, like family, house, job lined up after you graduate, that sort of thing.

 

Well, stay not really since you'd still be out of status and could be deported. It's a fuzzy thing since there's being in US illegally and then there's the whole thing of accruing unlawful presence where 180 days trigger a 3 year ban and over a year triggers a 10 year ban. Only thing you got lucky on by happening to overstay an F-1 rather than any other visa is that those are not applicable to you since due a quirk of regulations you never accrued any unlawful presence despite being in US illegaly, so you didn't get outright banned but you will still have an uphill battle to convince a consular officer that you will come to US, do your studies, and leave on time.

Edited September 11 by Demise

[yuithu 0]

10 minutes ago, Demise said:

I mean it all depends on your specific circumstances. Like why did you fall out of status (ideally due to no fault of your own) and whatever you have to return to in your country of origin, like family, house, job lined up after you graduate, that sort of thing.

 

Well, stay not really since you'd still be out of status and could be deported. It's a fuzzy thing since there's being in US illegally and then there's the whole thing of accruing unlawful presence where 180 days trigger a 3 year ban and over a year triggers a 10 year ban. Only thing you got lucky on by happening to overstay an F-1 rather than any other visa is that those are not applicable to you since due a quirk of regulations you never accrued any unlawful presence despite being in US illegaly, so you didn't get outright banned but you will still have an uphill battle to convince a consular officer that you will come to US, do your studies, and leave on time.

Is there any chance by the way that the consular will not know that I was out of status and grant me Visa? 

[Demise 1,281]

2 minutes ago, yuithu said:

Is there any chance by the way that the consular will not know that I was out of status and grant me Visa? 

Nope. Unless you snuck out of the country they'll know when you entered, when you expired, and when you left. Even if you did that and somehow there's no record of your departure, they'll just put the burden of proof on you to prove when you left.

[SalishSea 17,819]

1 hour ago, yuithu said:

Is there any chance by the way that the consular will not know that I was out of status and grant me Visa? 

Do not even think of lying to the consular officer.