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  • overstayed

    I entered US as student in 1990. After graduation in 1995, I got a job and had an H-1 issued from INS. However, I didn't go back to the original country to change the status. It is a big mistake that I did not know much about the immigration law at the time. After talked to a lawyer in 1997, I found out that I was barred to reenter to US. After that, I missed the 245i. It is another mistake. I was overstay in US since after graduation. I have been in US for more than 12 year now. I don't have any criminal record. Except marrying to a USC, Is there any legal way to fix this mess? Thanks

  • #2
    I entered US as student in 1990. After graduation in 1995, I got a job and had an H-1 issued from INS. However, I didn't go back to the original country to change the status. It is a big mistake that I did not know much about the immigration law at the time. After talked to a lawyer in 1997, I found out that I was barred to reenter to US. After that, I missed the 245i. It is another mistake. I was overstay in US since after graduation. I have been in US for more than 12 year now. I don't have any criminal record. Except marrying to a USC, Is there any legal way to fix this mess? Thanks

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    • #3
      I AM EXACTLY IN THE SAME POSITION AS YOU!!!! I am not committed to anyone so I obviously can't get married to a USC. If 245i is extended in the first quarter of this new year, I was advised to file for it.
      Hmmm....if you have 'extraordinary abilities', you may be able to petition yourself. By this I mean like a special researcher, chemist, etc. Research on it and see if you qualify.
      Otherwise, I don't really know what to tell you. My only reason for responding was to tell you that you're NOT ALONE! I too am finding a way to go around my overstaying. One big advantage we have is the fact that we entered the US legally.
      Let me know if you find a solution!

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      • #4
        Obviously, I did not know the consequence of not changing the status from F1 to H1. As I said, it is a big mistake.

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        • #5
          U have to pay a price for ur mistake now. Talk to a lawyer for guaidance, make sure talk to at least three lawyers to reach a final conclusion.

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          • #6
            To "??": John could not change status from within the US because he had gotten out-of-status. Yet, his fault was that he did not get back to his home country to get an H-1B visa in his passport -- back in 1995 the 3/10-years bars (now effective) did not apply, hence the consular officer would not deny him the H-1B visa just because he would have been illegally for a while in the US.

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            • #7
              I am in the same situation. I came here on a F-1 visa and overstayed after my graduation in 2000. I have a H1-B approved, but have to go back to my home country to get the visa.
              My lawyer says that the bars don't apply to overstay on student visas who live US on their own. Is this true? Any help in this matter would be greatly appreciated.
              thanks

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              • #8
                john I'd say get married. i am in worse then u.. seem like all the benificial law seem to come at the wrong time. been here 16 years. i was a lil kid when i came here and i am tying the knot..the dream act , life act the 245 all passed by.. do what u got to do.. hope u r not in the special reg group..

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                • #9
                  Let me get some fact straight. You said, you came on F-1, graduated and found a job, and changed your status to H-1. Any significant gaps in between?

                  If the answer is no, I don't see when you have ever been out of status. Remember visa and status are two totally different things. Who said you have to enter the country on a H-1 visa in order to have a valid H-1 status? Either you have omitted important facts, or you're just incriminating yourself.

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                  • #10
                    I totally agree with CoolDown. If INS gave you H1status and have not left the country, you do not even a visa. You need a visa to enter the US, you do not need a visa to be in the US. Your status has been changed by the service right here.

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                    • #11
                      Its a little different in my case - I had over a year gap in between my graduation (a Ph.D.) and the time we applied for H1B - the lawyer asked for a consular processing instead of asking for a change of status, since we were sure that INS will consider me out of status if we applied for a change of status - apparently the INS has no reason to look for your status if we apply for consular processing - therefore, my H1B was approved but I still have to go to the home country to get visa.

                      Now the trouble is that I am worried about the questions at the interview - they will definitely find out that I was out of status after my graduation - according to my lawyer, they can not legally bar me since I came on a student visa and then left the country on my own will - however, they can get pissed and deny the H1B application.
                      In that case, it will be very hard for me to come back here. So I really have two choices - to continue to stay here out of status or to take a chance and try to get my status fixed.
                      So back to my original question: is my lawyer right that the bars are not applicable on me?
                      also do I have any other options to fix my status other than this or getting married to a USC?

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                      • #12
                        I'm not sure your lawyer is right. The immigration law says if you overstay, you are subject to bar. Check out the Immigration Act section 212 on INS site:

                        http://www.ins.gov/lpBin/lpext.dll/i...htm#slb-act212

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                        • #13
                          My F-1 visa was actually expired in the middle of my master degree. INS did approved the H-1B. I think I am overstayed. Same as DKR123, INS may deny my H-1B application. And I will never come back again.

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                          • #14
                            John, you need to look into what other people said visa versus status thing. Visa is only used for entering the country. A visa valid for one year means you can enter US anytime during that year, it doesn't mean you can stay for a year.

                            If you look at your I-94 when you entered with the F-1, what does it say it's valid until? It says D/S, right? It means as long as you are a full-time student in the US, even for the next 20 years, you're legal and in status. If you don't have a significant gap between your gradution and H-1, then you're not out of status.

                            If you want more help here, maybe you should quit whining about how illegal you already are and present some more facts here so others can actually help you.

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                            • #15
                              I have almost a two years gap between my graduation in December 2000 and the approval of H-1B by INS. Again, could someone please tell me if the 3years/10years bars apply to someone who overstayed on student visas?

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