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  • #16
    Old Man... Thanks for the reply.

    I forgot to mention that, about a year ago, I showed my approved I-130 to a DSO, and she told me I don't need to be on F1 status anymore, this is something I later found out to be incorrect, so I listened to her and received resident tuition on my school (which was a big concern for me at the time). This lead to expired I-120, and not being on SEVIS, however continued to attend the school full-time with no I-20, and not being on SEVIS as an international student.

    This dilemma all occured from this dumb DSO, who gave me bad advice at the time. Now, I recently learned that this DSO is no longer at the school (maybe the school let her go for some other dumb actions) - and other DSO's at the school are now telling me that they will not be able to give me a new I-20, unless I leave the country. My last I-20 expired August 2004, my overstay so far is about 4 months (if that I-20 is considered), is this something that can be solved to adjust status?

    Thanks, and Enjoy your Holidays.

    Comment


    • #17
      Is SEVIS check ever involved for people who have a D/S on their I-94? I could never get a direct answer from anyone (including attornies).

      As I mentioned before, I overstayed, but continued to attend school... all because of a DSO's bad advice. I am currently full-time student, any chances for me to adjust?

      Thanks

      Comment


      • #18
        if you have been out of status for less than 5 months, do not leave the country, and get REINSTATED. That is, apply for reinstatement of F-1 status with the help of your International center.

        Comment


        • #19
          My attorney actually advised me to leave the country, and go through consular processing... since I haven't been told by USCIS to leave the country, and haven't been determined by a USCIS officer or a judge (since I have D/S on my I94) that I overstayed my visa... he advised me the whole process should be straight forward, and would take 4-6 months at the US embassy in London, England (where I hold residency). He recommended this the safest to get a greencard, instead of AOS hassle - where there will a be trap about my overstay. I am scheduled to leave the country soon, maybe this is a good time to question any hidden issues about my case on this board - I know many of you have experience on the immigration system.

          Does the CP route that my attorney recommended sound right?

          Please share opinions if there are any.

          Comment


          • #20
            You can only trigger 3/10 yrs ban - if you don't have D/S on your I94 - students are not effected, except when USCIS officer or a judge finds out you overstayed your visa... in my case, uscis havent actually sent me a letter to leave the country yet... so, if i leave, and go through consular process, my overstay issue might not be an issue because of being a person not effected by 3/10 yrs bar (D/S on I94).

            right?

            here is more finding to support the point i am trying to make, specifically - State Department Memo on Unlawful Presence and 3/10 Year Bars (1998):

            A --- Duration of Status Cases: Although most non-immigrants are admitted for a specified period of time, students, exchange visitors, information media representatives ("I" visa holders), and holders of certain diplomatic visas are usually admitted for "duration of status" (D/S). An alien admitted for "duration of status" will begin to accrue unlawful presence only if either:

            * an Immigration Judge (IJ) finds the alien has violated status and is excludable/deportable/removable, or

            * the INS, in the course of adjudicating an application for a benefit (e.g., extension of stay or change or adjustment of status), determines that a status violation has occurred.

            B --- Alien Admitted for D/S Who Violates Status:

            (I) Alien admitted on a student visa for duration of status, drops out of school day after arrival, takes up unauthorized employment, departs ten years later without ever having been found to have violated status by INS or an IJ: no unlawful presence accrued, not subject to 9B. In addition, 222(g) does not apply because there was no formal finding of a status violation by INS or an IJ. (see Ref D Septel on 222(g)).

            (II) Alien admitted for duration of status, violates status, e.g., by working without authorization, is out of status for any period of time, applies for a change of status (COS), which INS denies on the ground that alien was out of status. Unlawful presence begins to accrue on the date of the denial. The alien departs voluntarily on his own prior to commencement of removal proceedings 180 days or less after INS decision: not subject to 9B because alien did not accrue more than 180 days of unlawful presence after INS decision; however, alien is subject to 222(g).

            (III) Same facts as (II) but alien requests voluntary departure, which INS grants 180 days or less after the denial of COS, and the alien departs within the time granted: not subject to 9B because alien did not accrue more than 180 days of unlawful presence; however, alien is subject to 222(g).

            (IV) Same facts as (II), but INS grants V/D more than 180 days but less than one year after the denial of COS, and the alien departs within the time granted: subject to three-year bar of 9B1, and to 222(g).

            (V) Same facts as (II), but removal proceedings are instituted after INS's denial of COS, IJ agrees that alien violated status and grants V/D (with alternate order of removal) 180 days or less after the denial of COS: not subject to 9B (period between INS decision to deny COS and IJ's grant of V/D counts as unlawful presence, but period was less than 181 days, and grant of V/D is considered by INS to be a period of stay authorized by the Attorney General for 9B purposes); alien is, however, subject to 222(g).

            (VI) Same facts as (V), but IJ issues V/D order more than 180 days but less than one year after INS decision: not subject to 9B (although more than 180 days of unlawful presence accrued, three-year bar does not apply because alien did not depart before commencement of removal proceedings and ten-year bar does not apply because alien did not accrue at least one year of unlawful presence). 222(g) applies because INS and IJ found status violation.

            (VII) Same facts as (V), but IJ issues V/D order one year or more after INS decision: subject to ten-year bar of 9B2 because one-year-plus period between INS denial of COS and IJ grant of V/D counted as unlawful presence. 222(g) also applies.

            (VIII) Alien admitted on student visa for duration of status, drops out of school the next day, takes up unauthorized employment, stays ten years, is put in deportation proceedings, is found to have violated status but is simultaneously granted voluntary departure, and departs before date specified in V/D order: no unlawful presence accrued, not subject to 9B because "unlawful presence" clock did not start to run until IJ finding and has immediately suspended by V/D order. 222(g) applies, however.

            (IX) Same facts as (VIII), except alien does not depart until seven months after the date specified in V/D order: not subject to 9B (unlawful presence of seven months accrued, but three-year bar inapplicable because departure occurred after commencement of removal proceedings). 222(g) applies, however.

            Comment


            • #21
              Mo, I realize I'm Still Learning, and I did mention this on earlier thread, but I have a friend who left the country and had d/s on his I-94. He'd been out of school a few years though. I've spoken with several attorneys who have all said that the only way he could get back in the country would be as k-1 or k-3. They all felt like he'd be deemed an overstay and denied any other sort of visa.

              Comment


              • #22
                i edited my last post Still Learning... if you read again, i could get my family-based preference visa.

                Here is specifically the quote:

                "Alien admitted on a student visa for duration of status, drops out of school day after arrival, takes up unauthorized employment, departs ten years later without ever having been found to have violated status by INS or an IJ: no unlawful presence accrued, not subject to 9B. In addition, 222(g) does not apply because there was no formal finding of a status violation by INS or an IJ. (see Ref D Septel on 222(g))."

                right?

                Comment


                • #23
                  Something my friend and I have discussed...at what point would there be a problem IF there was going to be one? I've seen that memo before I think and it was very encouraging, IF all of the offices go by the instructions in it. A lot has happened to me in the past 4 months so my memory is getting foggy. I remember the conclusions or final answers but not exactly how we got there. :-) I'm thinking that at least one attorney said that it would be at AOS that my friend would have the problem IF he were to have one and being married to US citizen would erase any "problem". Most recently though we've had some discussions as to how could he come back into the US and then a judge deem him to be an overstay because he would have a new visa so how could his prior time here possibly affect AOS? I think that is only logical which makes me wonder, how could any of us have thought there would possibly be a problem? I seem to find a lot of people with the d/s issue who are trying to find out information, but not many who have come back into the US successfully. Maybe we just never hear from those because they had no problems or issues. I would be very careful though about leaving the country until you are entirely confident of what the result will be. Every attorney we've spoken with, without exception, has said that if my friend had stayed in the US there would be absolutely no problem as long as he had married a citizen. LOGICALLY it sounds like you could adjust with no problem from over there but sometimes there doesn't seem to be any real logic behind Immi's actions.

                  Anyway, your case has facets that I know nothing about. I suggest that you post on
                  http://britishexpats.com/forum if you haven't already. It and www.immigrate2us.net have more assistance than this board does lately. Maybe with answers from there and what you've already gotten here it will be more clear what you should do.

                  Comment


                  • #24
                    Still Learning

                    Well obviously, anyone can go through marriage-based greencard and have no problem... as long as the spouse is a USC, all unlawful presences will be waived.

                    The issue with my case is, I entered the country with D/S I94 before 9/11, we all know how things changed since then, especially for international students. SEVIS was implemented (which I never ended being on that system), and they know everyone on that system - they even know what people on SEVIS the had for breakfast this morning. Basically, I am trying to say, if I violated my status post-9/11, USCIS would show-up on my door-steps, and put me under removal proceedings. However, I am not on the radar, and will not have (I hope that I won't) anything like that - since I violated my status before SEVIS was created.

                    Ok... here is the thing, my options are; (A) get AOS done here, by marrying a USC, and go through the dilemmas of marriage, which I am honestly not ready for, even though my current girlfriend is not a USC - she won't support me for looking a USC woman to get my greencard . (B) go back to England, and do consular processing there, which is much faster than AOS in the US, and after reading the DOS memo I posted above - it is possible to do so without any hussle.

                    So here is the juice of the story, why would I have problems, if the immigration laws itself says that I won't have problems, regarding re-entering the country under immigrant visa with previous unlawful presence that was not accrued, and not subject to any type of bars - due to no formal finding of a status violation by USCIS or an IJ.? why? - and why would DOS play against its own rule with someone who has a similar case as mine... isn't it LOGICAL for them to recognize what cases fall under the rules, and which ones don't.?

                    To me this doesn't seem as complicated as people make... and the only thing I did was fell out of status without USCIS finding out about it, which gives me the chance to leave and get my immigrant visa with no troubles.... as the DOS memo outlines (unless they changed that rule).

                    right?

                    Comment


                    • #25
                      Mo, after I started looking into some things there were issues that didn't seem complicated at all to me, yet I had spoken to attorneys who considered them to be real stumbling blocks. Hopefully someone will respond who knows more about your particular situation, Old Man may provide more info, or Sphyrapicus or someone else. Good luck :-)

                      Comment


                      • #26
                        Thanks Still Learning for the opinions.

                        who else thinks I could have problems through consular processing?

                        Comment

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