sphyrapicus3 : What do you think?

[Mo]

I want to hear your take on this:

An F1 student fell out of status for a period over 180 days due to financial problems, but then regained status. Now, this student will be applying for family-based AOS soon under F1 category (USC son over 21).

1. Will the family-based AOS be denied due to the previous overstay? or there is a degree to exercise discretion to be eligible for green-card?

2. If not, what are the chances of getting a waiver and being approved? - remember, there was financial issue for overstaying... and the student's father is a USC.

3. If the AOS is denied, is that automatic REMOVAL PROCEEDING? - is there a way to avoid this?

All the points you can give is appreciated.

[Mo]

I want to hear your take on this:

An F1 student fell out of status for a period over 180 days due to financial problems, but then regained status. Now, this student will be applying for family-based AOS soon under F1 category (USC son over 21).

1. Will the family-based AOS be denied due to the previous overstay? or there is a degree to exercise discretion to be eligible for green-card?

2. If not, what are the chances of getting a waiver and being approved? - remember, there was financial issue for overstaying... and the student's father is a USC.

3. If the AOS is denied, is that automatic REMOVAL PROCEEDING? - is there a way to avoid this?

All the points you can give is appreciated.

[sphyrapicus3]

I'm sorry Mo but this kind of question is way over my head. I would consult a competent immigration attorney.

[Mo]

anyone else want to give it a shot?

no sarcasm please.

[marmaduk]

I'll be inclined to invoke the Freedom of Information Act and gather what the govt knows about you. There might be a possibility they didn't learn about the fall out of status, especially if its only for a short period of time. Besides, won't the International Student Office do something when they know the students fell out of status? Otherwise, how can you regained status ?

[Mo]

Well, my initial status and current status are both student. However, the initial status was in the old system, so students who fell out of staus were not logged into the current SEVIS system, only the in-status or new students were. If anyone fell out of status with the old I-20s, they were assumed to either left the country or maybe changed to another status - and no one from the old INS bothered tracking students if they over-stayed their visa, they would just have to wait until you applied for immigration benifits.

My current status is under the new system (SEVIS), if I fall out of status now... I will be asked to leave by the DHS. I will be AOS soon, and hope they don't dig deep to this issue.

I hope you are right marmaduk.

[Lucy]

since F-1 students have D/S on their I-94, their illegal presence does not start accumulating until an immigration officer makes an official decision that the student is out of status. From the point that the decision is made, the student will start accumulating illegal presense.

So, even if a student is out of status, which happens a lot, he/she will not be illegally present until an official determination by an immgiration officer. It only applies to people who have D/S on their I-94.

[Mo]

Lucy

Thanks for your input. So, if an immigration officer determines I am out of status during AOS interview, then the clock starts ticking from that day? - if yes, can I be approved if the overstay is only 1 day?. No immigration officer has determined I have been out of status previously.

Also, can AOS be denied in prelimenary stages before the interview due to this issue? - does the notification/determination of overstay is presented in person or by letter for this kind of case?

Thanks for the advice you can give, I think you just gave me a second hope.

[Mo]

After some research on this topic, here is what the LAW says:

The period for unlawful presence (overstay) begins on:

1) The expiration date* of the visa "status" document (I-94 Arrival/Departure Card), or

2) status violation**, determined by an immigration judge, or

3) status violation**, determined by the US CIS during the course of adjudicating a benefit application.

*No date, but "D/S" on I-94 Arrival/Departure Card (typical "D/S" holders are F, M, J and I visa status holders).

For those who do not have an expiration date on the I-94 card, but "D/S" (duration of status), there can be no "unlawful presence," unless (2) or (3) above.

**Status Violation: i.e., unauthorized employment; for a student, a failure to pursue a full course load; for nonimmigrant worker, a violation of the terms of the particular visa.

Important: A status violation determination must be must be made by an immigration judge or the US CIS, for the individual to be considered to be unlawfully present. Therefore, even if a person is in "violation of status," he/she may not be considered as being unlawfully present -- unless there is a determination.

Students With "D/S"

A nonimmigrant student does not accrue unlawful presence unless a status violation determination has been made.
Students do not have an expiration date on the visa "status" document, but "D/S" (duration of status) on the I-94 Arrival/Departure Card (typical "D/S" holders are F, M, J and I visa status holders). Unless a status violation determination is made, there is no unlawful presence, even if there are status violations. Therefore, if a "D/S" student files for "re-instatement" to F-1 status, he/she may trigger the US CIS to make a determination that there is a status violation. If this determination is made, unlawful presence begins on the date of the determination.)


It looks even if the student have overstayed 1000 days, the clock starts from the day USCIS officer makes the detrmination during AOS. Am i right on this one? - See point #3 above.

[Mo]

Can AOS be denied with less than 180 days overstay?

[swissnut]

Mo:

With regard to the D/S scenario you posed, that is how I interpret it too. I have also been told by others, more knowledgeable on this than I, that the overstay begins at the point when USCIS learns of it.

[marmaduk]

His is family based but not marriage based so out of status is a problem since it doesn't carry the waiver in marriage based case.
I guess the question is when/if the USCIS officer discover the out of status, what will they do?

[Mo]

swissnut

What if the USCIS learns the overstay during the AOS interview? - which means it will be determined that day, that will be my 1st day of unlawful presence in the US... I never heard of any penalties for less than 180 days overstay. Normally the penalties are over 180 days overstay (3 years bar), and over 1 year overstay (10 years bar). So, if there is no penalties for less than 180 days, what would normally be the next step for the D/S issue(since I am an over 21 son of a USC)?


JohnDoe

The issue is not that I am currently out of status, but I have been in the past, and will I be able to Adjust.


marmaduk

Can you explain more by what you ment "family based out of status will be a problem"? The earliest the USCIS discovers my previous overstay (my guess) is when I file for AOS. They either discover it in their early stages in the process, or the later (the interview). Again, when they do, and the clock starts ticking... I might not start reaching the over 180 days bar problems. Can less than 180 days overstay carry a discretion for a USC children over 21?

Thanks everyone.

[E.]

Mo;
I suggest you go to www.murthy.com, click on 'Search' and type 'period of authorised stay', 'lawful status' , 'adjustment of status' and etc.
You will find plenty of accurate and relevant information ( usually with references to memos of Acting Commissioners, DHS officials and etc.).

I just picked one out of hundreds, and although it does not match your specific situation, yet it may give some helpful insights.
Also, you will have an idea what kind of info. you can get from murthy.com if you need to.

Good luck,
E.
_______________________

"Period of Authorized Stay" Different from "Lawful Status"
Posted Apr 25, 2003

In an April 2, 2003 memorandum, Thomas E. Cook, Acting Assistant Commissioner, Office of Adjudications at the U.S. Department of Homeland Security incorporates a memo of the Office of General Counsel that sets forth important clarifications for those seeking to change or extend status. The resultant Memo ("Cook Memo") clarifies the distinction between "period of stay authorized by the Attorney General" and maintaining "lawful status" and how to apply these for requests to change or extend nonimmigrant status.

This Memo provides us with some guidance on when it is no longer safe for a person to file an extension of nonimmigrant status from one employer to another in what sometimes is referred to as "serial porting" or otherwise to file a change of status. The Memo clarifies that BCIS (Service) will not issue a new I-94 card if the change or extension is filed after the person is no longer in lawful status. The need to be in status at the time of filing the request to extend nonimmigrant status is well established. What the Memo clarifies is the situation in which a person files to extend or change status in a timely manner and then files a second request through yet another employer after the I-94 has expired but while the earlier case is pending. The Memo states that the second filing will be regarded as untimely if the first filing is denied. The first filing keeps the person lawfully present in the U.S., but does not confer the needed status. Therefore, it cannot be used as a "bridge" between the initial status, reflected in the I-94, and the final filing.

The Memo concludes that a person cannot be considered in lawful status merely by filing another petition or application after the initial period of authorized stay has expired. This concept may be more clearly explained with an example.

Case Scenario :

In January 2001, a person enters the U.S. on a B-2 Tourist Status.

In March 2001, the person finds an employer and files for a Change of Status (COS) to H1B.

In July 2001, the person's I-94 card with B-2 status expires.

In September 2001, the person receives a difficult RFE on the H1B case. So, the person files an untimely B-2 extension of status.

In December 2001, BCIS denies the H1B petition. In January 2002, the same employer files another H1B for the person.

In February 2002, the BCIS denies the extension of B-2 status for late filing.

In February 2002, the second H1B petition is approved but the COS is denied since the person was out of status at the time of filing the second H1B petition.

Person May be Lawfully Present but Not Maintaining Lawful Status

In its analysis of this case scenario, it appeared to BCIS that some attorneys assumed there was some sort of a "bridge" of continuous lawful status stemming from the initially-filed COS application that enabled the person to avoid becoming unlawfully present as long as there was a pending EOS (extension of stay) or COS application with the Service. This assumption is based on a misinterpretation of the concept that the "period of stay authorized by the Attorney General" is equivalent to "maintaining lawful status" in the U.S. The BCIS analyzed two earlier memos, the March 3, 2000, Michael Pearson Memo ("Pearson Memo") and the unlawful presence memo of Johnny Williams of June 12, 2002 ("Williams Memo"). The Pearson Memo provides for the extension of the 120-day tolling period so that a person is considered to be in a period of stay authorized by the Attorney General when that person has filed either a COS or an EOS petition or application prior to the expiration of lawful status.

Referring again to the case scenario used in the example above, the Cook Memo concludes that, although a person is considered to be in a "period of stay authorized by the Attorney General" until the date of the initial denial of the original H1B petition (December 2001, in the example above), from the date of the initial I-94 card expiration (July 2001, above) that person would not be considered to be maintaining lawful status. Of course, if the EOS or COS application or petition is ultimately granted, the person again will be considered to be in legal status, since s/he would obtain an extension of the I-94 card attached with the INS/BCIS approval notice. The fact that there was also an untimely-filed EOS application for B-2 status extension, which was pending at the time the first H1B petition was pending with the Service, did not confer any continuing lawful status on the person. While some attorneys were construing the Williams Memo to mean that serial porting is permitted, the Cook Memo clarifies that it does not.

Regulations as Authority

The Cook Memo cited 8.C.F.R.214.1(c)(4) and 8.C.F.R.248.1 (b) as authority for its conclusion in distinguishing the two concepts of (1) "period of authorized stay" for unlawful presence and (2)"lawful status." These regulations provide that the Service may not approve a change of status for a person who has failed to maintain the previously accorded status or whose status expired before the application or petition was filed. The Pearson Memo recognizes that the Service takes much longer than the 120-day tolling period to adjudicate many petitions or applications and recognizes that such a person should not, and will not, accrue unlawful presence until a final decision is made on the application or petition that was timely filed. On the other hand, if an application or petition was untimely filed and ultimately is denied, then unlawful presence begins accruing on the date that the original I-94 card expired, regardless of the reason for the denial. If the I-94 card eventually is extended based on the approval of the COS or EOS, then the person is considered to be maintaining lawful status throughout.

Conclusion

The Cook Memo provides guidance on an important policy matter that was the source of much confusion regarding the application and consequences of the differences between maintaining status and being in a period of stay authorized by the Attorney General. Although the Memo is not as helpful as we would have hoped, the fact that there has been some clarification issued in this regard will help immigration lawyers to more accurately advise their clients rather than be left with uncertainty and gray areas of law.

_____________________________

Old Overstay Records Now Tracked
Posted May 30, 2003

At the May 9, 2003 AILA National Spring Conference there was mention made of old I-94 records, reflecting overstays, appearing in the database used at the Ports of Entry (POEs). Those who turned in their I-94s (Arrival / Departure Cards) in the mid-1990s, after having overstayed their permitted time, may now encounter difficulty when attempting to reenter the U.S. Many of these people have been residing in the U.S. in a new status and, in the past, were able to freely travel to and from the U.S. Earlier overstays went unnoticed because the information in the POE databases was incomplete with respect to I-94 information. In this post-9/11 era of improved record keeping and improved databases, the information is now becoming available. Individuals with prior overstays will be taken to secondary inspection. The former overstay may impact one's ability to re-enter, depending upon whether the individual is now a permanent resident or which current nonimmigrant status is sought.

Problems may arise even for people who did not overstay their permitted periods of status in the past. The reason for this is that the I-94s are collected by the airlines. There are times when this process was not as thorough as would be desired. There are situations in which people lost their I-94s or turned in expired I-94s, even though they had valid, newer I-94s due to extensions of status. Additionally, if a person filed an extension of status request or change of status request, but departed before a decision, the information regarding the filing would not appear in the POE database. Accordingly, this may appear as if the person overstayed his/her status despite the timely filing of an extension or change of status request that permitted the individual to remain in the U.S.

We recommend that MurthyDotCom and MurthyBulletin readers turn in the proper I-94s when departing the U.S., showing that they maintained valid legal status until the date of departure from the U.S. and to maintain proof of departure as well as any receipt notices or other evidence of filings that formed a basis for remaining in the U.S. past the I-94 expiration date.

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[marmaduk]

Mo:
I'm simply stating that since your is not marriage based, there's not a clear cure-all waiver such as applicable to spouses of USC. Out of status will be a problem to all AOS cases except the spousal ones.

Now as for what the USCIS will do if they discver your previous out-of-status, is the underlying problem (and from the looks of it, we're all still pretty much in the guessing game). My only concern is, if they found your out-of-status, will they not only cancel your AOS, but also invalidate your present status? Is there even a waiver to fix this problem? The Cook memo that E quoted kinda bugs me since it seemed to look even more unfavorably to those who ever fell in out-of-status.

Again, this is all depends on whether USCIS is aware of your out-of-status period. Thats why I suggesting to collect your information from the government using FOIA to see if there's an indication whether USCIS is aware of your situation or not.

Have you try contacting a lawyer? As much as help we can provide, its no substitute for a good qualify immigration lawyer.