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I came here on an F-1 student visa with Duration of status (D/S) i94. I've been out of school and out of status for 1+ year. My question is, am I subject to the 3 year or 10 year ban if I leave the U.S.? 

I've read on the USCIS law link the following: " For foreign nationals whose I-94 indicates D/S, unlawful presence does not begin until USCIS determines, in adjudicating an application for immigration benefits, that the foreign national violated status, or until an IJ finds that the foreign national has violated status".

My other question is, what do they mean by "adjudicating an application for immigration benefits"? Benefits like what? is it adjustment of status benefit? Or work visa benefit? Stuff like that?

Thank you very much!  

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Yes. An immigration benefit would be considered an adjustment of status benefit. For example, if you were to file for a change of status within the country (F-1 -> H-1B), USCIS would determine that you haven't maintained your F-1 status, and the date of that determination is when the clock for the 3-year and 10-year ban starts. You'd also be ineligible to change your status to H-1B. You're generally barred from any immigration benefit due to your unlawful status, but there are exceptions, such as an immediate relative adjustment case. 

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Unless you get married to a USC, you have no good options. You can't adjust to a new, legal status. When you leave the country and apply for a new visa, the overstay will most likely come up. Staying here means you'd have to work illegally (which is a crime!) and can get you deported. 

 

Moral of the story: don't overstay your visa. You have a 60-day grace period after graduation during which you're supposed to prepare for leaving or adjust to a new status.

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16 minutes ago, DrEllaNJ said:

Unless you get married to a USC, you have no good options. You can't adjust to a new, legal status. When you leave the country and apply for a new visa, the overstay will most likely come up. Staying here means you'd have to work illegally (which is a crime!) and can get you deported. 

 

Moral of the story: don't overstay your visa. You have a 60-day grace period after graduation during which you're supposed to prepare for leaving or adjust to a new status.

 

I'm married to a US citizen actually and I have i130 in process. Problem is I have J1 visa 2 year requirement and i have to spend 2 year in my country. My only concern is the 3 or 10 year ban. After I spend the 2 year there to satisfy the J1 requirement I will be able to apply for immigrant visa, I think...

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18 minutes ago, useagle1987 said:

 

I'm married to a US citizen actually and I have i130 in process. Problem is I have J1 visa 2 year requirement and i have to spend 2 year in my country. My only concern is the 3 or 10 year ban. After I spend the 2 year there to satisfy the J1 requirement I will be able to apply for immigrant visa, I think...

 

If your 2 year requirement for the J1 is based on the "skills list" then you can get a waiver by getting a "No Objection" letter from your embassy. 

 

Or, if your J1 is previous to your F1, any time you traveled to your country after your J1 will count towards to the 2 years. But if you had Fulbright or something like that, and that is why you had a J1, you need to go to your country and complete your 2 years. 

 

 

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1 minute ago, Coco8 said:

 

If your 2 year requirement for the J1 is based on the "skills list" then you can get a waiver by getting a "No Objection" letter from your embassy. 

 

Or, if your J1 is previous to your F1, any time you traveled to your country after your J1 will count towards to the 2 years. But if you had Fulbright or something like that, and that is why you had a J1, you need to go to your country and complete your 2 years. 

 

 

I'm planning to go spend the 2 year in my country. My concern is the 3 or 10 year ban. How can I know if I have 3/10 year ban? I've heard that for D/S foreigners, only when they are served with a notice to leave the country then the unlawful presence ban begins. Is that true?

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3 minutes ago, useagle1987 said:

I'm planning to go spend the 2 year in my country. My concern is the 3 or 10 year ban. How can I know if I have 3/10 year ban? I've heard that for D/S foreigners, only when they are served with a notice to leave the country then the unlawful presence ban begins. Is that true?

 

If you are applying for a green card through marriage you can file a waiver to avoid the ban. I have no idea about the timing.

 

Probably the day your i-20 was terminated, you have like a 30 or 60 day grace, and after that you start accruing time. You should have applied for OPT after having a F1. 

 

If you can get the J1 waiver while in the US, you won't have a ban because if you change status while in the US, it is forgiven/overlooked by USCIS. But it will depend on why you got the 2 year requirement in the first place.

 

 

 

Edited by Coco8

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12 minutes ago, useagle1987 said:

I'm planning to go spend the 2 year in my country. My concern is the 3 or 10 year ban. How can I know if I have 3/10 year ban? I've heard that for D/S foreigners, only when they are served with a notice to leave the country then the unlawful presence ban begins. Is that true?

That's true. The clock for the 3 and 10 year ban does not start for D/S J and Fs until USCIS or an immigration judge determines you have no lawful status. When they determine that, it is not retroactive to the point where you may have fallen out of status (graduated, SEVIS termination, dropped out, whatever).  The clock only STARTS right when they determine you have no status.

Edited by daigo
typo

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3 minutes ago, daigo said:

That's true. The clock for the 3 and 10 year ban does not start for D/S J and Fs until USCIS or an immigration judge determines you have no lawful status. When they determine that, it is not retroactive to the point where you may have fallen out of status (graduated, SEVIS termination, dropped out, whatever).  The clock only STARTS right when they determine you have no status.

but does that also apply when OP leaves the country and then applies for immigration benefits? Will they then see her application and go: oh, s/he stayed for another 1+ year after graduation+60 day grace period so s/he was illegal and has a ban?

 

I don't know the answer to this question, and can't find it. Or perhaps I don't have time to go looking for it. Maybe consult a lawyer?

 

 

 

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3 minutes ago, DrEllaNJ said:

but does that also apply when OP leaves the country and then applies for immigration benefits? Will they then see her application and go: oh, s/he stayed for another 1+ year after graduation+60 day grace period so s/he was illegal and has a ban?

Yes, the most likely scenario is that the days for the ban start when the grace period ends. 

 

But for spouses of US citizens there is a waiver which extends the time to get the IR1/CR1 visa. However, since OP has to spend 2 years in the home country, the whole visa process will probably take those 2 years. 

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16 minutes ago, DrEllaNJ said:

but does that also apply when OP leaves the country and then applies for immigration benefits? Will they then see her application and go: oh, s/he stayed for another 1+ year after graduation+60 day grace period so s/he was illegal and has a ban?

 

I don't know the answer to this question, and can't find it. Or perhaps I don't have time to go looking for it. Maybe consult a lawyer?

 

 

 

The of Department of State has a foreign affairs manual that outlines how a CO would handle this type of case of unlawful presence. It provides a little more detail. An attorney is a good idea though, considering there's also a two-year home residency requirement (if OP wants to have it waived).

 

Quote

For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless 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;

Quote

For persons who have been admitted for duration of status (DOS) (as is usually the case with aliens in A, G, F, J, and I visa status), unlawful presence will not accrue unless an immigration officer, IJ, or the BIA finds a status violation in the context of a request for an immigration benefit or a deportation proceeding in removal proceedings. A violation of status in the United States is not, in itself, sufficient for an INA 212(a)(9)(B) finding, unless the alien entered without having been inspected and admitted or stayed beyond the Form I-94 specified date. Otherwise, only a finding of violation of status by the DHS, an IJ, or the BIA can cause a period of "unlawful presence" to begin.

Quote

When calculating unlawful presence, the date that the Form I-94 (or any extension) expires is considered authorized and is not counted. In addition, the date of departure from the United States is not counted as unlawful presence. In duration of status cases where DHS or an IJ or the BIA makes a formal status violation finding, the alien begins accruing unlawful presence on the date of the finding (i.e., the date the finding was published/communicated). For example, if an applicant presents a letter from DHS dated December 1, 2008, that says the applicant was out of status starting on May 28, 2001, the applicant began to accrue unlawful presence as of December 1, 2008, not May 28, 2001. Note that, in the event that an IJ made the status violation finding and concurrently issued a voluntary departure order, no unlawful presence would accrue if the applicant complied with the order by making a timely departure.

https://fam.state.gov/searchapps/viewer?format=html&query=duration%20of%20status&links=DURAT,STATU&url=/FAM/09FAM/09FAM030211.html#M302_11_3_B_1

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1 hour ago, Coco8 said:

 

That is a good source! OK. So it seems there was no time accrued.

That's exactly what I was looking for. So, so far I have no unlawful presence ban until I am served with a letter of removal or a IJ orders deportation, correct?

 

Thank you for your help!

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Just now, useagle1987 said:

That's exactly what I was looking for. So, so far I have no unlawful presence ban until I am served with a letter of removal or a IJ orders deportation, correct?

 

Thank you for your help!

It seems so. 

 

Why aren't you considering a J1 waiver? Is it because of the type of program you did? 

 

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57 minutes ago, Coco8 said:

It seems so. 

 

Why aren't you considering a J1 waiver? Is it because of the type of program you did? 

 

I applied for no objection but got a denial because of US gov funds. I don't wanna bother with hardship waiver, seems like waste of time and money and far from guaranteed. 

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