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CarolMCam

Unlawful presence - J-1 visa

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Hello!
I went to US in a J-1 visa 2007. My I-94 said D/S, and my DS-2019 stated November/207 - March/2008. In February, 2008 I applied for an extension, which as denied. The denial was sent in May/2008. I stayed in the US until april/2009.
I know that the unlawful presence would start from the moment my extension was denied. But the period in which you wait for the extension does not account as unlawful presence only if one doesn't work.

http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html#visa

(iv) Tolling for good cause.-In the case of an alien who-

(I) has been lawfully admitted or paroled into the United States,

(II) has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General, and

(III) has not been employed without authorization in the United States before or during the pendency of such application,the calculation of the period of time specified in clause (i)(I) shall be tolled during the pendency of such application, but not to exceed 120 days.

But I did work during that period of time...
So when did my unlawful presence began? Should I ignored the fact that I worked, and start counting my unlawful presence as of May/2009 (when the extension denial letter was sent to me)?
Or the fact that I worked makes a difference? In this case, when did my unlawful presence began? My D/S stated March/2008, so that would be when my unlawful presence started? But there is a 30-day grace-period... Could I count my unlawful presence from April/2008 on (which would include the grace-period)?
This is very important for me because I will apply for IR1 visa. My husband and I have been married for 5 years now. I am having difficulties calculating the time I stayed unlawfully, and IF my unlawful presence started in March/2008 (stated in my DS-2019), that means I was unlawfully present for over an year, and which case the 10-year ban would be applied...
Thank you!
Best
Carolina.

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When your extension of stay was denied, you should have been mailed a letter. In that letter, was there a date in there in which you were supposed to have left by? If yes, what is that date?

No, do not ignore anything about this case. When listing your work history you need to list it honestly. Trust me, they already know so if you try to hide it, you'll be in heaps of trouble

good luck


USCIS
August 12, 2008 - petition sent
August 16, 2008 - NOA-1
February 10, 2009 - NOA-2
178 DAYS FROM NOA-1


NVC
February 13, 2009 - NVC case number assigned
March 12, 2009 - Case Complete
25 DAY TRIP THROUGH NVC


Medical
May 4, 2009


Interview
May, 26, 2009


POE - June 20, 2009 Toronto - Atlanta, GA

Removal of Conditions
Filed - April 14, 2011
Biometrics - June 2, 2011 (early)
Approval - November 9, 2011
209 DAY TRIP TO REMOVE CONDITIONS

Citizenship

April 29, 2013 - NOA1 for petition received

September 10, 2013 Interview - decision could not be made.

April 15, 2014 APPROVED. Wait for oath ceremony

Waited...

September 29, 2015 - sent letter to senator.

October 16, 2015 - US Citizen

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When your extension of stay was denied, you should have been mailed a letter. In that letter, was there a date in there in which you were supposed to have left by? If yes, what is that date?

No, do not ignore anything about this case. When listing your work history you need to list it honestly. Trust me, they already know so if you try to hide it, you'll be in heaps of trouble

good luck

Hi! Thank you for your response! =)

The letter didn't say what date I had to leave the US, instead there was a date it was issued, which was May, 29th, 2008. I received the letter like 1,5 week after that.

I am afraid that since I worked, the period from the end of my DS until I got this letter would not count as lawful presence... I agree with you, I don't think lying would do any good for me.

Do you know about the grace period for a J-1 visa? Would it count as lawful presence? When does it start, from the end date of my DS-2019?

Thank you!!! =)

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From iLw.com,

"Unlawful presence is "tolled" (does not accrue) during the pendency of a timely-filed, nonfrivolous petition to change or extend nonimmigrant status. In addition, the alien must not have worked without authorization before the change of status or extension of stay was filed, or while it was pending[4]."

OP, your unlawful presence started accruing on March 2008. This is because even if you timely filed an extension (which was denied May 2008), you worked without authorization starting March 2008. Working without authorization while your application for extension was processed, as the quote above indicates, begins the clock on your unlawful presence. Therefore, since you left the country in May 2009, you're subject to the 10-year bar.

This is just my opinion. You better consult with an immigration attorney


Check my timeline for K-1 visa & AOS details

Conditional Permanent Resident: 16 September 2014

Conditional GC Expires: 16 September 2016

ROC Journey (CA Service Center)

2016-Sep-14: I-751 form, check, supporting docs sent USPS Priority Express

2016-Sep-15: ROC application received & signed for by Lakelieh

2016-Sep-15: NOA receipt date

2016-Sep-19: $590 check cashed by USCIS

2016-Sep-20: NOA/ 1-year extension letter received in mail

2018-Feb-26: ROC case transferred to local office

2018-Mar-06: ROC approved via USCIS website (WAC status check)

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Becoming out of status by itself does not trigger unlawful presence. Unlawful presence can only start accruing in three ways:

  1. Staying past the date on your I-94 (this is impossible for people who entered on D/S)
  2. A final ruling against you by an immigration judge
  3. You apply to USCIS for some benefit and they rule you to be out of status

Appying for extension of stay probably counts as applying to USCIS for some benefit, and when you were denied, that's (May 2008) when unlawful presence starts accruing. You left in April 2009, so you left after about 11 months of unlawful presence, which would mean a 3 year ban which has already passed.

If you didn't apply for anything, you wouldn't have had any unlawful presence.

Edited by newacct

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Becoming out of status by itself does not trigger unlawful presence. Unlawful presence can only start accruing in three ways:

  1. Staying past the date on your I-94 (this is impossible for people who entered on D/S)
  2. A final ruling against you by an immigration judge
  3. You apply to USCIS for some benefit and they rule you to be out of status

Appying for extension of stay probably counts as applying to USCIS for some benefit, and when you were denied, that's (May 2008) when unlawful presence starts accruing. You left in April 2009, so you left after about 11 months of unlawful presence, which would mean a 3 year ban which has already passed.

If you didn't apply for anything, you wouldn't have had any unlawful presence.

Dear newacct,

Thank you for your help! Do you think the fact that I worked while I was waiting for my extension may complicated my situation? I worked under the table. I mean, would they even ask about that at some point when I apply for my IR1?

Thank you!

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From iLw.com,

"Unlawful presence is "tolled" (does not accrue) during the pendency of a timely-filed, nonfrivolous petition to change or extend nonimmigrant status. In addition, the alien must not have worked without authorization before the change of status or extension of stay was filed, or while it was pending[4]."

OP, your unlawful presence started accruing on March 2008. This is because even if you timely filed an extension (which was denied May 2008), you worked without authorization starting March 2008. Working without authorization while your application for extension was processed, as the quote above indicates, begins the clock on your unlawful presence. Therefore, since you left the country in May 2009, you're subject to the 10-year bar.

This is just my opinion. You better consult with an immigration attorney

Dear zuluweta,

Thank you for the help! But after reading newacct response and reading a little bit more after that, I think that in my case since my I-94 said D/S (there was no date I had to leave the country), the only date that applies for me was when the extension was denied. I hope so! =)

Thank you one more time! =)

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Dear newacct,

Thank you for your help! Do you think the fact that I worked while I was waiting for my extension may complicated my situation? I worked under the table. I mean, would they even ask about that at some point when I apply for my IR1?

Thank you!

It shouldn't matter.

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Dear newacct,

Thank you for your help! Do you think the fact that I worked while I was waiting for my extension may complicated my situation? I worked under the table. I mean, would they even ask about that at some point when I apply for my IR1?

Thank you!

Yes, the immigration forms ask for your work history, dates you were in the U.S., what status you had in the U.S., etcetera. You must tell the truth, including your out of status and unlawful presence (if any) information.

Just be honest and let USCIS or the U.S. Embassy figure out if you have an unlawful presence bar. You will know at the interview if you are inadmissible or not, and whether you qualify for any waivers.


Check my timeline for K-1 visa & AOS details

Conditional Permanent Resident: 16 September 2014

Conditional GC Expires: 16 September 2016

ROC Journey (CA Service Center)

2016-Sep-14: I-751 form, check, supporting docs sent USPS Priority Express

2016-Sep-15: ROC application received & signed for by Lakelieh

2016-Sep-15: NOA receipt date

2016-Sep-19: $590 check cashed by USCIS

2016-Sep-20: NOA/ 1-year extension letter received in mail

2018-Feb-26: ROC case transferred to local office

2018-Mar-06: ROC approved via USCIS website (WAC status check)

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Yes, the immigration forms ask for your work history, dates you were in the U.S., what status you had in the U.S., etcetera. You must tell the truth, including your out of status and unlawful presence (if any) information.

Just be honest and let USCIS or the U.S. Embassy figure out if you have an unlawful presence bar. You will know at the interview if you are inadmissible or not, and whether you qualify for any waivers.

Thank you, zuluweta!

It's great to know more about this process with someone that has been there already! Thank you very much!

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I highly suggest consulting a good immigration attorney. You do not have a simple case. As you can see from this thread alone, you may have a 3 or 10 year ban and the difference may be important.


You have brains in your head. You have feet in your shoes. You can steer yourself any direction you choose.  - Dr. Seuss

 

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Thank you, zuluweta!

It's great to know more about this process with someone that has been there already! Thank you very much!

I forgot to mention that your addresses in the U.S., state ID and driver license information, and social security number will also be asked in the immigration forms you need to fill out.


Check my timeline for K-1 visa & AOS details

Conditional Permanent Resident: 16 September 2014

Conditional GC Expires: 16 September 2016

ROC Journey (CA Service Center)

2016-Sep-14: I-751 form, check, supporting docs sent USPS Priority Express

2016-Sep-15: ROC application received & signed for by Lakelieh

2016-Sep-15: NOA receipt date

2016-Sep-19: $590 check cashed by USCIS

2016-Sep-20: NOA/ 1-year extension letter received in mail

2018-Feb-26: ROC case transferred to local office

2018-Mar-06: ROC approved via USCIS website (WAC status check)

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