10 years ban or not?

[schizzo_fg 1]

My question is for purposes of an accurate counting of total amount of "unlawful presence" accumulated (if any). Wanna know if Consular officer will slap me with ban or not. I'm an italian national.

F-1 multiple entry VISA valid from Jan 2003 - May 2006

Jan 2003 - Admitted as F-1 student (D/S)

2004 - Lost status (no full course of study)

Aug 2004 - Filed I-539 to extend/re-instate F-1 status to USCIS

Oct 2004 - Tired to wait for response, re-gained status by re-entering US from Canada with new I-20

(succesfully re-admitted with new d/s/ stamp)

Jan 2005 - Attended full course of studies (Winter & Summer, but dropped

out in the fall)

Aug 2005 - USCIS response of I-539 filed in 2004 arrived saying it was

denied because, “I did not pursue a full course of study from

2004 on” (although I was in full status and attending school in 2005 when I received the letter)

Sep 2005 - Jan 2014 - No further letter from CIS about my out of status-ness

Jan 2012 - put in removal proceedings for violating terms of visa

Jan 2014 - I deny the charges, IJ goes on the record sustain the charges, ( he has access to the USCIS denial of I-539 letter dated 2005 as evidence I was out of status (although I re-sinstated status in 2004 by going to Canada). and grants Voluntary Departure.

At my consular interview, If the consular officer holds that the date of the letter initiates my unlawful presence in the US, then I have a 10 years ban. (I do know that removal proceedings have no effect on starting or stopping unlawful presence).

Does the fact that I actually was in full status at the time I received the denial letter means anything at all? in order to avoid the 10 years ban? I can prove that there hasn't been any further notification from USCIS following that only letter. That would mean that I went undetected about being out-of-status (until I was arrested & dismissed later). That would also mean that I never accumulated unlawful presence, because I received voluntary departure. It seems as if USCIS did not see (maybe) my new entrance from Canada that re-instated my status.

The State Department in the "Foreign Affairs Manual" (FAM) says, "

1. For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States is considered authorized, until DHS, IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding;

[milimelo 4,191]

Reading your timeline you do have 10 yr ban. How'd you get a new F1 visa - there are questions if you abused previous visa(s) - which you did?

[schizzo_fg 1]

I departed the US when I was out of status in 2004 and re-entered with a new I-20. That reset my status, (supposedly). That's what my DSO suggested to me that I should do and everything went fine. I went to Canada for a few days, and the US re-admitted me. That's how I did it.

What confuses me is the fact that I was able to attend school just fine in 2005 as an international student. The letter of denial I received in Sept 2005 from USICS talks about me falling out of status and not going to school in 2004. That's why I went out of US and got back in legally admitted. it doesn't talk about 2005 at all.

Is that a mistake by USCIS? I do know that by leaving the US one abandons whatever petitions they have pending for extension of status (I-539). But then, they still sent me the letter saying that I was denied of my request in 2004... ... and I'm like... .. Hello???? .. ... of course it was denied. I knew it that's why I left!

[New User 1000 4]

Hi Schizzo,

I have few questions. I have gone through something similar. I have few questions:

1. what is your citizenship?

2. on your D/S stamp, is there a date on it?

3. who put you under removal proceedings? were you in the US at the time or re-entering US from Canada or other country?

If you answer the questions, I may be able to help.

[schizzo_fg 1]

1. Italy

2. D/S stamp (no date)

3. DHS served the NTA, after an arrest (that was dismissed). I was in the US, went to Canada from the US and got back in re-entering from Canada.

[New User 1000 4]

So you were put under removal proceedings before the judge?

[schizzo_fg 1]

Reading your timeline you do have 10 yr ban. How'd you get a new F1 visa - there are questions if you abused previous visa(s) - which you did?

Milimelo,

I did not have to obtain a new F-1 VISA, as my VISA was still valid when I left the US to go to Canada in 2004 (VISA was valid form Jan 2003 - May 2006). I only fell out-of-status by not attending a full course of study in 2004. By departing the US and being re-admitted shortly after, I basically re-instated myself without having to wait for USCIS to adjudicate my I-539.

So you were put under removal proceedings before the judge?

YES

Edited June 15, 2015 by schizzo_fg

[New User 1000 4]

Schizzo, it's really important how exactly you were put into removal proceedings. That is why I am asking the question.

Basically, I am a canadian citizen and was in the US as an F-1 student. My D/S never had a date and I did an overstay which I did not realize. I moved back to Canada after graduation (after my overstay) and was denied entry the third time I was going back as a visitor. They added a 10 year ban and I basically given an appointment at the immigration judge in Buffalo. I hired a lawyer in buffalo and both the DHS/Judge terminated the 10 year ban due to the fact that when I was in the US, I was not found unlawfully present by an immigration judge and was not deported.

I am sorry to tell you then that I think that your chances of 10 year ban is pretty high.

[zuluweta 250]

The moment OP lost status sometime in 2004, the student visa was automatically canceled and was improperly used to re-enter the US from Canada, even with a new, valid I-20. My suspicion is that USCIS believes you were not in valid student status after re-entry from Canada because you did not wait for USCIS to adjudicate your application for F-1 visa reinstatement.

Furthermore, USCIS formally denied your F-1 reinstatement in 2005. Your unlawful presence clock started on the date of this denial and yet you stayed until 2012 when you got caught and subjected to deportation. So yes, you have a 10-year ban and you will need a 601 waiver and possibly a 212 waiver to re-enter the US as an immigrant.

[schizzo_fg 1]

The moment OP lost status sometime in 2004, the student visa was automatically canceled and was improperly used to re-enter the US from Canada, even with a new, valid I-20. My suspicion is that USCIS believes you were not in valid student status after re-entry from Canada because you did not wait for USCIS to adjudicate your application for F-1 visa reinstatement.

Furthermore, USCIS formally denied your F-1 reinstatement in 2005. Your unlawful presence clock started on the date of this denial and yet you stayed until 2012 when you got caught and subjected to deportation. So yes, you have a 10-year ban and you will need a 601 waiver and possibly a 212 waiver to re-enter the US as an immigrant.

Zuluweta,

that is actually a good point! My thoughts are these:

SEVIS (which is ICE) sent an e-mail to my DSO at the school shortly after my I-539 submission (before I left to Canada) indicating that my request for re-instatement had been denied because I had been out of status on more than one occasion and therefore I had to depart the US, but there was no mention of having to re-apply for VISA in my own country (my VISA was still in its validity - at least dates-wise and I had not been out of status for more than 5 months from the time I filed I-539)

After that, I left to Canada and was fully re-admitted.

Say that you are right and that my VISA was automatically cancelled because I was out of status, then why all universities give options to International students who fall out of status to fix their status in one of two options? either leave US (coming back with new I-94) or apply for re-instatement? All universities DSO's give those two options.

It's hard to believe that my DSO wouldn't bring to my attention the potential that my VISA could be cancelled, even if I was legally re-admitted at a POE with F-1 status and d/s stamp on I-94.

As far as the unlawful presence, this is what I'm hoping to gain. If I can prove to a consuslar officer with documents, dates, and transcripts from my school that USCIS made a mistake in writng that letter and that they didn't catch my new stauts when I got back from Canada (was just follwoing DSO rules), then the unlawful presence never applies. Even if I stayed in the country for 10 more years, I was out of status but because I did not stay over the expiration date of my I-94 (because it was a d/s stamp - no stamp), technically I was not accruing "Unlawful Presence" for purposes of the 10 year bar.

In duration of status cases, only when the judge makes a formal finding of me being out of status, that's when the clock starts the "unlawful presence". I was given Voluntary Departure afterwards. and I accumulated less than 180 days of "unlawful Presence".

Long shot, but if I'm slapped with the 10 year ban, I'll use this argument. We'll see! Now I'm going to dig in to find out if my VISA was truly cancelled or not. If it wasn't and I did evertyhing legally, going to Canada and coming back. The only thing the USCIS letter says is that, "I did not pursue a full course of study from 2004 on and therefore my I-539 was denied.

[schizzo_fg 1]

The moment OP lost status sometime in 2004, the student visa was automatically canceled and was improperly used to re-enter the US from Canada, even with a new, valid I-20. My suspicion is that USCIS believes you were not in valid student status after re-entry from Canada because you did not wait for USCIS to adjudicate your application for F-1 visa reinstatement.

Furthermore, USCIS formally denied your F-1 reinstatement in 2005. Your unlawful presence clock started on the date of this denial and yet you stayed until 2012 when you got caught and subjected to deportation. So yes, you have a 10-year ban and you will need a 601 waiver and possibly a 212 waiver to re-enter the US as an immigrant.

Was not deported, was granted Voluntary Departure! No 212 waiver needed!

[zuluweta 250]

Was not deported, was granted Voluntary Departure! No 212 waiver needed!

"Those who have opted for voluntary departure are not exempted from having to file the I-212 application for readmission."

That quote is from Peerallylaw.com, an immigration law firm.

[schizzo_fg 1]

The moment OP lost status sometime in 2004, the student visa was automatically canceled and was improperly used to re-enter the US from Canada, even with a new, valid I-20. My suspicion is that USCIS believes you were not in valid student status after re-entry from Canada because you did not wait for USCIS to adjudicate your application for F-1 visa reinstatement.

Furthermore, USCIS formally denied your F-1 reinstatement in 2005. Your unlawful presence clock started on the date of this denial and yet you stayed until 2012 when you got caught and subjected to deportation. So yes, you have a 10-year ban and you will need a 601 waiver and possibly a 212 waiver to re-enter the US as an immigrant.

To rely on automatic visa revalidation upon re-admission in the US, a nonimmigrant alien must meet the following conditions:

1. Form I-94 showing an unexpired period of initial or extended authorized stay
2. A valid passport with a nonimmigrant visa, whether valid or expired, used for a prior admission to the US.

I was under the automatic visa revalidation. You're right, the out of stauts may have cancelled my VISA, however because I had a valid I-94 unexpired, and I was out of the US for less than thrity and I had traveled to a conitguous territory (Canda or Mexico), even if my VISA was expired, I would have been allowed to get back in under the automatic visa revalidation. In my case, My VISA wasn't even expired, that's why I was back in full status when I got back from Canada!

[zuluweta 250]

Zuluweta,

that is actually a good point! My thoughts are these:

SEVIS (which is ICE) sent an e-mail to my DSO at the school shortly after my I-539 submission (before I left to Canada) indicating that my request for re-instatement had been denied because I had been out of status on more than one occasion and therefore I had to depart the US, but there was no mention of having to re-apply for VISA in my own country (my VISA was still in its validity - at least dates-wise and I had not been out of status for more than 5 months from the time I filed I-539)

After that, I left to Canada and was fully re-admitted.

Say that you are right and that my VISA was automatically cancelled because I was out of status, then why all universities give options to International students who fall out of status to fix their status in one of two options? either leave US (coming back with new I-94) or apply for re-instatement? All universities DSO's give those two options.

It's hard to believe that my DSO wouldn't bring to my attention the potential that my VISA could be cancelled, even if I was legally re-admitted at a POE with F-1 status and d/s stamp on I-94.

As far as the unlawful presence, this is what I'm hoping to gain. If I can prove to a consuslar officer with documents, dates, and transcripts from my school that USCIS made a mistake in writng that letter and that they didn't catch my new stauts when I got back from Canada (was just follwoing DSO rules), then the unlawful presence never applies. Even if I stayed in the country for 10 more years, I was out of status but because I did not stay over the expiration date of my I-94 (because it was a d/s stamp - no stamp), technically I was not accruing "Unlawful Presence" for purposes of the 10 year bar.

In duration of status cases, only when the judge makes a formal finding of me being out of status, that's when the clock starts the "unlawful presence". I was given Voluntary Departure afterwards. and I accumulated less than 180 days of "unlawful Presence".

Long shot, but if I'm slapped with the 10 year ban, I'll use this argument. We'll see! Now I'm going to dig in to find out if my VISA was truly cancelled or not. If it wasn't and I did evertyhing legally, going to Canada and coming back. The only thing the USCIS letter says is that, "I did not pursue a full course of study from 2004 on and therefore my I-539 was denied.

In duration of status cases, unlawful presence begins when an immigration judge makes a formal finding or USCIS denies your application for an immigration benefit (namely, F-1 student status reinstatement). It's not just the IJ that can start the clock on your unlawful presence. USCIS can also start the clock on unlawful presence for someone in D/S status. Since USCIS denied your reinstatement in 2005, that's when your unlawful presence started.

Whatever the merit of your re-entering the US to continue studying using a new I-20, your immigration status as a student was terminated by USCIS in 2005 from which point on you were already accruing unlawful presence.

In addition, not only did you not leave but you committed a violation somewhere which got ICE involved and you were subjected to removal proceedings. As Peerally wrote on their website, voluntary departure does not exempt you from having to re-apply for readmission. In other words, you need to file the 212 waiver for your VD and you also need to file the 601 for your 10-year ban due to at least 7 years unlawful presence.

[schizzo_fg 1]

"Those who have opted for voluntary departure are not exempted from having to file the I-212 application for readmission."

That quote is from Peerallylaw.com, an immigration law firm.

I can see where you may be confused from that quote! Not those that have been granted voluntary departure from an IJ and timely departed by the date the IJ gave!

The contest they may be using is either for those who had a voluntary Departure granted, but overstayed the date of their voluntare departure (it becomes automatically an order of removal), or they may be talking about those who were order removed in absentia (didn't go to the hearing), once they leave the US is considered to have departed under an order of removal, therefore the I-212 waiver is needed!

The main benefit of the voluntary Departure is exactly that, that you avoid having a formal order of removaland can leave the US on your own (your own ticket, your own destination...), in lieu of a formal order of removal... ... For unlwaful presence the only waiver needed is the I-601, not the I-212