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Andy&Chriss

When unlawful presence starts

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Filed: IR-1/CR-1 Visa Country: Belize
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Hi all

I am asking this question on behalf of my good friend. Recently he got caught by ICE.

He was student (F1 with I-94 D/S), dropped out of school. So when his unlawful presence would starts?

Is it the time when ICE knocked at his door or the time he got caught by ICE or the time when Immigration judge gives a decision?

Thanks

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Filed: Citizen (apr) Country: Australia
Timeline

I am unsure when his unlawful presence starts but he would have been out of status as soon as he stopped attending classes. ICE probably caught him because his school informed them he was not complying with the terms of his visa.


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Filed: Citizen (apr) Country: Canada
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When I was an F-1 I was told, when it was granted, that as soon as I failed to abide by the terms of my visa (ie staying in school) I would begin accumulating unlawful presence in the US.

Agreed - his school probably reported the violation of the visa.

Good luck


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Unlawful Presence for D/S Aliens Such as F-1 Students

Alien non-immigrants who have the D/S stamp such as F-1 and J-1 students begin accruing unlawful presence on the date that USCIS finds a status violation or on the date that an immigration judge finds a status violation. With the USCIS scenario, this usually implies the date of the denial of a non-immigrant visa extension or the denial of a change of status application. Thus, even if you fall out of status on an F-1, as long as no determination has been made by the USCIS or the Immigration Judge as to your status violation, you won't be accruing unlawful presence.

Out of Status but Not Accruing Unlawful Presence

Being out of status does not necessarily mean that one is accruing unlawful presence. The F-1 student who is not in F-1 status anymore is out of status; but unless immigration finds out and makes a determination that s/he is out of status, s/he is not accruing unlawful presence.

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When your friend dropped out of school he/she was out of status. According to this, unlawful presence would not begin accruing until a definite determination is made by USCIS or an immigraiton judge that he/she is 'out of status' there is no unlawful time accrued. After said determination, however, unlawful presence begins accruing.

Edited by Minya's wife

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Filed: IR-1/CR-1 Visa Country: Belarus
Timeline

Unlawful Presence for D/S Aliens Such as F-1 Students

Alien non-immigrants who have the D/S stamp such as F-1 and J-1 students begin accruing unlawful presence on the date that USCIS finds a status violation or on the date that an immigration judge finds a status violation. With the USCIS scenario, this usually implies the date of the denial of a non-immigrant visa extension or the denial of a change of status application. Thus, even if you fall out of status on an F-1, as long as no determination has been made by the USCIS or the Immigration Judge as to your status violation, you won't be accruing unlawful presence.

In the above mentioned situation since the individual was deported, the date unlawful presence began the last day he attended classes or maybe the day the school contacted DHS. Now at minimum because of deportation an I212 will be required, and there may be a time specified I believe 5 years before you can reapply for entry. It might now require a waiver.

As I have said in previous posts, get a lawyer, and a good one.

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Filed: IR-1/CR-1 Visa Country: Belarus
Timeline

Sorry, forget what I said about deportation.. this is pre deportation but sounds like you are in proceedings if you are waiting for Immigration Judge decision.

Since ICE is involved, the date unlawful presence began the last day he attended classes or maybe the day the school contacted DHS. Now he is at risk of deportation if the Immigration judge doesn't grant Voluntary Departure. If that happens to re-enter an I212 will be required, and there may be a time specified I believe 5 years before you can reapply for entry, before the 5 years I think it requires a waiver.

As I have said in previous posts, get a lawyer, and a good one. You do not want him to accrue so much unlawful presence he gets a 3/10 year bar.

Do not wait to call lawyer and don't go to hearing without one. If you are already married might be able to file for cancellation of removal if there is a hardship to you if he is deported.

DO NOT WAIT TO GET A LAWYER CALL TOMMOROW

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Sorry, forget what I said about deportation.. this is pre deportation but sounds like you are in proceedings if you are waiting for Immigration Judge decision.

Since ICE is involved, the date unlawful presence began the last day he attended classes or maybe the day the school contacted DHS. Now he is at risk of deportation if the Immigration judge doesn't grant Voluntary Departure. If that happens to re-enter an I212 will be required, and there may be a time specified I believe 5 years before you can reapply for entry, before the 5 years I think it requires a waiver.

As I have said in previous posts, get a lawyer, and a good one. You do not want him to accrue so much unlawful presence he gets a 3/10 year bar.

Do not wait to call lawyer and don't go to hearing without one. If you are already married might be able to file for cancellation of removal if there is a hardship to you if he is deported.

DO NOT WAIT TO GET A LAWYER CALL TOMMOROW

Really the OP gave too little information for us to know how or why ICE is involved....did the school contact DHS, or was the OP's friend caught in a 'sting' and that's when the out of status was discovered? We can't say for sure what the immigration judge will find as the day which began the unlawful presence accrual....nor do we know how long it has been since the friend in question has fallen out of status (stopped going to school).

Yes, the recommendation to get a lawyer is spot on...he/she needs legal representation, but too much conjecture on what will happen is premature.


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Filed: IR-1/CR-1 Visa Country: Belarus
Timeline

Really the OP gave too little information for us to know how or why ICE is involved....did the school contact DHS, or was the OP's friend caught in a 'sting' and that's when the out of status was discovered? We can't say for sure what the immigration judge will find as the day which began the unlawful presence accrual....nor do we know how long it has been since the friend in question has fallen out of status (stopped going to school).

Yes, the recommendation to get a lawyer is spot on...he/she needs legal representation, but too much conjecture on what will happen is premature.

I agree 100% with what you are saying. I am giving worse case scenario because I only see and hear about the worse case. No one who gets benefit of the doubt from Uncle Sam shows up in the I601 forum.

The need for an attorney is the key to all this discussion as the wrong step could lead to much hardship. Generally speaking when ICE is involved it is not good and unless it was a "sting" this person was caught up in, the odds are high there is a proceeding initiated, hence the mention of "what the Immigration Judge decides".

But I take your advice and speculate no further ;)

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Filed: IR-1/CR-1 Visa Country: Belize
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I agree 100% with what you are saying. I am giving worse case scenario because I only see and hear about the worse case. No one who gets benefit of the doubt from Uncle Sam shows up in the I601 forum.

The need for an attorney is the key to all this discussion as the wrong step could lead to much hardship. Generally speaking when ICE is involved it is not good and unless it was a "sting" this person was caught up in, the odds are high there is a proceeding initiated, hence the mention of "what the Immigration Judge decides".

But I take your advice and speculate no further ;)

My friend was caught not because of anything but dropping out of school. He never had criminal record of any kind.ICE came to his house to ask about his school.According to lawyer he has good chance of getting Voluntary departure and he should take it. But can ICE officer can initiate unlawful presence, i hope not.

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My friend was caught not because of anything but dropping out of school. He never had criminal record of any kind.ICE came to his house to ask about his school.According to lawyer he has good chance of getting Voluntary departure and he should take it. But can ICE officer can initiate unlawful presence, i hope not.

How long has it been since your friend has dropped out of school? ICE coming to his house would have been trigerred by something....the school's reporting of said dropping out perhaps. If his dropping out is recent, I'm not sure why you're so worried about unlawful presence. Voluntary departure is indeed offered in some cases, and it means that the person is not ordered deported (meaning they do not have the 5 year inadmissibility attached to them).

Unlawful presence, and the attached periods of inadmissibility are a separate issue. 180 days but less than a year of unlawful presence = a 3 year ban; More than a year = 10 year ban. Those with more than a year of unlawful presence, who have been ordered deported, and later seek to enter the US without authorization are permanently inadmissible.

An ICE officer does not 'initiate' unlawful presence...determination of the total length of unlawful presence is made in immigration court.

Edited by Minya's wife

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It won't let me edit my post, so here it is re-worded.

How long has it been since your friend has dropped out of school? ICE coming to his house would have been prompted by something....the school's reporting of said dropping out perhaps? If his dropping out is recent, I'm not sure why you're so worried about unlawful presence. Your friend violated the terms of his student visa by dropping out of school....but it is up to immigration court to officially make a determination of said 'violation'.

Voluntary departure means that the person is not ordered deported (meaning they do not have the 5 year inadmissibility attached to them). Unlawful presence, and the attached periods of inadmissibility are a separate issue. 180 days but less than a year of unlawful presence = a 3 year ban; More than a year = 10 year ban. Those with more than a year of unlawful presence, who have been ordered deported, and later seek to enter the US without authorization are permanently inadmissible.

An ICE officer does not 'initiate' unlawful presence.

Edited by Minya's wife

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