F1 overstay, got confused with the solutions!

[carolec 1]

Ola.

I just registered to this forum, I don't know if there is an "introduce yourself" section (I looked for it, could not find it), so sorry in advance if I am being rude by skipping some steps .

So here is my story.

I am from Paris, France, moved to New York in 2009 to finish my MA in Communication Arts.

I graduated in May 2010 with excellent grades, and got the OPT on the 21st of July 2010.

I found a job in my field of studies, I was good at it, my boss loved me. In December, I got laid off, we all did actually, since the company was from Luxembourg and just closed the entire office in New York.

I was a little traumatized by this but I knew I had no time to waste, so I looked, HARD, for a new job. I found one, part-time tele-commuting job still in my field of studies. My boss loved my work, so he started procedures with my lawyer for a part-time H1B. I was in heaven.

Meanwhile, I started to really get into photography, got a bunch of publications, and my own solo show in a big gallery in Brooklyn, NY. That is why I was looking for a part-time job: I was starting to realize I wanted to do photography only.

So in the middle of all the paperwork, my boss asked me to thank him for the H1B by sleeping with him . I refused, and got fired. I wanted to sue him, but I had a very weak case, since he had just filed for my H1B I had no credit... And since his company was virtual (no physical office), it was harder. Long story short, I gave up. I was angry and hopeless, but still.

I found another job at another company in May 2011. I had a couple of months left on my OPT and was starting to lose all hope. I just got confirmation that it was not written in the stars for me, because in July 2011, just a few weeks before the end of my OPT, I got laid off. Again.

So, in one year of work, I managed to find three jobs, got laid off twice, and got fired for not sleeping with my boss.

I have overstayed my OPT for 8 months now, since my boyfriend and I talked about marriage... And he backed out a month ago.

I am honestly sick of all this, I saw two other lawyers, who told me there is no way for me to apply for school again, or for any other type of visa than an H1B (since the immigration intent does not matter for a H1B). My plan was to go back to school, for photography, and eventually apply for an O1 after the program.

My questions are:

Am I really ineligible for school? My last i-20 ended on July 21st 2011.

Could I apply for an O1 now? I had three art shows, I have solid letters of recommendations, and more than 10 publications in different magazines (London, Paris, New York, Seattle). Or is the O1 really off the table, since I overstayed?

Could I still apply for school or an O1 if I explain hardship? I mean, I really got unlucky. I can prove all of this as well, I can get my lawyer to testify about the boss that fired me while he was filing for my H1B, and my former bosses to testify that I got laid off but was a good worker.

Thank you for your help! I am really against the wall right now.

[NancyNguyen 1,657]

Well once you overstay for more than 180 days, there is no way you can obtain any non-immigrant visas at least for 3 years (ban for 180+ days overstaying, another 4 months you will be banned for 10 years.) Once you ban is finished, the chance to obtain a non-immigrant visa is very slim because you have a fault with US immigration already. Your overstaying is only forgiven when you get married to an US citizen. Sorry but there is no way to get around this situation. Good luck.

[canadian_wife 1,791]

From an emotionally detached perspective, which immigration COs are, you did not endure any hardship. You had a run of bad luck looking for jobs but overstayed your authorized stay, probably to spend time with your boyfriend. Continuing to stay is simply putting your future in the US in jeopardy. You are currently out of status and subject to deportation if caught. You are not against the wall, you may return to your home country at any time

WHile I am sorry for your situation, do not expect the COs to be sympathetic.

Good luck

[Little_My 464]

I agree with the previous posters. I also think there is a HUGE difference between a 3 year ban and a 10 year ban - and right now, you are subject to the former. In my opinion, the smartest thing you can do is return to your home country now before you hit the 10 year ban mark (which will incur from an overstay of 365 days or more). Three years, in the end, is not that long of a time period. Since the H1-B visa does allow dual intent, this overstay probably won't prevent you from obtaining a work visa in the future after your ban has ran out should you be able to find a US employer willing to hire you. As mentioned by Nancy and Canadian_wife, your chances of ever getting a non-immigrant visa, such as tourist or student visa, are slim to none (more none than slim probably) because of this overstay.

You can try for the F1 three years from now, but it's unlikely you would be issued another student visa since you overstayed this one. Right now though, there's absolutely nothing you can do about the ban unless you're planning to marry an American. I think your best course of action at this point in time is to avoid the 10 year ban.

Edited April 2, 2012 by Little_My

[carolec 1]

Ah! I wrote a whole reply and it got erased... I think...

OK I was saying I had a DS I-94 form on my passport, am I not "safer" right now? (not accumulating any illegal presence before a judge or immigration officer told me I was)

Another question: could I already be accumulating these days without knowing it? Since I moved a looot these pase three years, it's possible that they sent letters to my previous addresses...

And what about a visa waiver? If I decide to leave for a little bit and come back for a week?

Thanks again

[Little_My 464]

You started accumulating overstay when your OPT expired. There is a 90 day grace period (or maybe 60 day, not sure which) after the EAD card expires during which the F1 visa holder must leave the US, or get a new, valid visa issued to avoid overstaying. USCIS doesn't send you any letters to inform you that you have overstayed your visa - it is the visa holders responsibility to keep track of their status, and make sure they do not accumulate any overstay once their visa status has expired. D/S only means that there is no specific date when your authorized stay expires, and that you can stay in the US as long as you fulfil the requirements of your visa, i.e. stay in school, finish an exchange program, work under OPT, etc:

Upon arriving at a port-of-entry and when admitted, a CBP officer places a small white card, Arrival-Departure Record, Form I-94 or a small green card, Form I-94W for VWP travelers, in your passport. This card is very important as it shows permission to be in the U.S. On this card, the CBP officer records either a date or duration of status (D/S) in the lower right hand corner. If your I-94 or I-94W contains a specific date that signifies the date you must exit the U.S. Some students, exchange program participants, and temporary workers (e.g., foreign diplomats) will be admitted for D/S. If you have D/S on your Form I-94, you may remain in the U.S. as long as you continue your course of studies, remain in your exchange program, or qualifying employment. (http://travel.state.gov/visa/temp/info/info_1298.html)

You have accumulated overstay since the 90 day grace period ended. If by "visa waiver" you mean the visa waiver programme that citizens of certain countries are eligible for, that won't do you any good either. Since you have overstayed a previous visa, you are no longer eligible for the VWP. If you wanted to visit the US, you would have t apply for the B2 tourist visa, and you would most likely be denied due to this overstay.

[carolec 1]

The two lawyers I saw told me I was not accruing illegal presence until someone told me saw (a judge, an immigration officer)

[Little_My 464]

Hmm.. after a very quick google search in this matter, I have to admit that I'm not 100% sure what your situation would be, should you leave the US now. You are most definitely out of status at the moment, there is no question about that. However, it seems that you're correct in that you are not considered to be accumulating unlawful presence until an immigration judge or USCIS has formally determined you to be out of status.

Someone here will have more knowledge or experience about this situation I'm sure, but from what I know and can tell, you are in any case on borrowed time. I am not sure what will happen if you voluntarily leave now - i.e. whether or not the 3 year ban will take effect - but at the moment, you are not authorized to work or study in the US. I also don't know what would happen if you could find someone in the US who would be willing to hire you, and whether or not you could convert to the H1-B from being out-of-status. Someone here might know more about this type of a situation, but I also think consulting a lawyer might be a good idea to find out exactly what your options are.

[Harsh_77 716]

H1B cannot be filed once you are out of status H1B would not be approved.

Best bet is return to the home country before anymore overstay is accumulated.

You are not accumulating illegal presence, but you are accumulating overstay, which your lawyer did not tell you.

Immigration does keep a tab of when you entered when you were supposed to leave and if you overstayed or not without judge’s or immigration officer’s order.

[jaycali 415]

You were lawfully present in the US only for as long as your I-94 allowed you to be. In this case, it said D/S meaning you were in status until 60 days after your OPT expired.

Any amount of time spent in the US after your student status expired is considered unlawful, unless you wee granted an extension, or filed to adjust status. With or without a court ruling.

Only legitimate marriage to a US citizen can now make you eligible to stay legally.

I suggest leaving now, before a year has passed, to make sure you don't trigger a 10 year bar, or end up in removal proceedings.

A 3 year bar and voluntary departure will look WAY better on any future applications, than 10 year bar and removal.

Edited April 3, 2012 by jaejayC

[jaycali 415]

As for visa waiver, unfortunately, you'll need a B-1/2 visa for any future visit to the US.

Any VWP citizen with previous negative immigration history needs a visa.

[jaycali 415]

Hmm.. after a very quick google search in this matter, I have to admit that I'm not 100% sure what your situation would be, should you leave the US now. You are most definitely out of status at the moment, there is no question about that. However, it seems that you're correct in that you are not considered to be accumulating unlawful presence until an immigration judge or USCIS has formally determined you to be out of status.

I was confused about this too actually. But surely, you can't stay for 20 years and not be considered an overstayer if you just happened to evade law enforcement.

You're out of status once you're no longer in student status (60 day grace if you graduate or complete OPT).

I wonder if in this case the 5 year bar may be applied.. That's the bar normally applied for violating a student visa.