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  • Need Help

    I am Planing to get married soon,My fiance is in california on h-1 visa.Currently i am in canada. I have lived in the US for 16 yrs i had a f-1 (studen Visa) which was expired in 1993.I have an i-94 with D/S on it . I was wondering if may have a bar to re-enter on h-4 ? or not thank u for ur help.

  • #2
    I am Planing to get married soon,My fiance is in california on h-1 visa.Currently i am in canada. I have lived in the US for 16 yrs i had a f-1 (studen Visa) which was expired in 1993.I have an i-94 with D/S on it . I was wondering if may have a bar to re-enter on h-4 ? or not thank u for ur help.

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    • #3
      d/s stands for duration of status. so from the moment that you stopped attending school you are considered out of status. if you overstayed more than 180 days you probably triggered a bar. there is a slight possibility that you might be lucky if the CIS didn't 'notice' your overstay, but I am not very hopeful.

      maybe someone who has personal experience with overstaying F-1 before the implementation of SEVIS can advise further

      Comment


      • #4
        Isnt Overstay is Overstay if an immigration judge finds it overstay in case of d/s? and i never tried to adjust my status.

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        • #5
          I think I can shed some light on this issue, but at the end of these ramblings, you may very well find that I have only added to the ambiguity and confusion.

          I uncovered these findings given my own situation and personal experiences, talking to several lawyers.

          MOST lawyers are of the opinion that the 3/10 year penalty begins the day you fall out of status (end a semester without finishing classes, or expelled from school for whatever reason). The number of days of unlawful presence in the country accrued, which determines the 3/10 year bar, begins the day you fall out of status.

          Quite a number of well established and experienced lawyers (who have argued such cases), disagree. In a nutshell, their understanding of the statutes is that, once one falls out of status, the number of days of unlawful presence in the country accrued (which determines the 3/10 bar), only begins/when

          1) on the day you are caught/discovered
          2) as determined by an immigration judge

          One may be out of status for many years. But that does not necessarily mean that person is subject to the 3/10 year ban. This has been succesfully argued, from what I understand, and USCIS concurs/agrees.

          What this means is that, technically, one can be out of status for extended periods of time, decides to leave the country, and can still re-enter on a new visa, and not be subject to the 3/10 year ban.

          Now - immigration laws enforced within the US and issuance of visas in respective home countries, is two, sometimes completely, different things. I understand that in spite of the above argument, consular offices have still been known to deny visas. While they agree with the law, they are still allowed to use their own discretion when issuing/approving visas. If they feel that, given one's past history, the person may have a tendency to overstay again, or work without authorization, or be involved in illegal activities, they can deny the visa.

          All I can say is, it depends on the consular officer. Since you are getting married to someone who is legal in the US, they should approve an H4 visa for you, IF you were never caught. On the other hand, since you had 16 years of overstay, though not subject to the ban, since you were not caught, they may still deny you a visa, if they feel you may overstay again, for example, if your husband falls out of status.

          I have several questions for you in turn. Your situation is somewhat similar to mine (see "Any Hope?" thread). One of my options is to move to Canada. How did you make that move? Do you have a degree? How did you meet the points required to migrate? Are you a landed immigrant now? Did you experience any problems when leaving US, and upon entering Canada, by both immigration officers?

          Does anyone know of forums/websites for Canadian immigration?

          Thank you.

          Comment


          • #6
            D/S actually stands for "duration of studies". Technically, there is no time limit provided you study full time without interruption. Usually, it is issued for four or five years.

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            • #7
              I have actually talked to an immigration judge regarding this. If you have d/s on your I-94. You over stay doesnt start till the day a immigration judge deems you removable.

              Lets say the judge says you have 3 months to voluntarily leave the country and you do. Thats when you illegal presence and over stay starts!

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              • #8
                so i guess i wouldnt know till i go thru wid it ...neyways thank u so much for ur help ...and atwitsend trust me u will regret coming here EH ... most ppl here fat n old and collect welfare and yes i gradutated from st johns and even i have experience working in my feild in the us but these stupid ppl still ask for canadian experinece ... its sux here .. i misss NY

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                • #9
                  you do know that you can just as easily rip up the I-94 -- cross back into canada -- turn around and cross back into the US (for tourist purposes) and immediately be back into status?

                  if you carry an I-94, and get "discovered" and can't demonstrate you're in school -- that's where you can be jailed and would have to explain your out of status situation to a judge.

                  oh and always be careful what you say to INS -- like our poor fellow in that other canadian thread who talked w/o proper counsel.

                  -= nav =-

                  Comment


                  • #10
                    Here is something to add to the confusion. The following link leads to a pdf from the State Dept Note to FAM that was sent to foreign posts. The instruction agrees with the notion that overstay time for D/S does not start until the alien is formally found to have overstayed in the context of applying for IM benefits. Go figure.
                    http://www.foia.state.gov/masterdocs/09fam/0940092N.pdf

                    Comment


                    • #11
                      My Canadian friend was given I-94 in 2003 at the Toronto airport, he was visiting his sick mom. He had 30 days to turn it in. When he got back to Phx he called INS, INS told him he could drop it at the Mexican Border, Which he did. And the I-94 stated to surrender at ANY US border. I noticed they have changed them in Aug 04. You have to turn them in at the country it was given in.

                      Comment


                      • #12
                        honestly -- i don't think canadian i-94's are even recorded. You didn't hear it here -- but i've had plenty of friends who crossed with I-94s, threw in 'em the garbage, and never had any problems ever coming back. Even applying for benefits.

                        There's plenty of articles of how HORRIBLE the ins is at recording delivered I-94's. Plenty of cases of improper #'s record, dates, etc. Guess that's what you get when you hire $6/hr welfare workers to input them in.

                        (btw: that's why US-VISIT was developed. The I-94 system was sooo HORRIBLY implemented that's it's practically useless internally and rarely referenced).

                        So if you tell the officer you handed it in, and it didn't get recorded -- good chance he'll believe you.

                        -= nav =-

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                        • #13
                          Does anyone know where you can read about actual cases where this has been put to the test?

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