Trkmc85

I see. I overstayed on F1 visa so I don’t really know if I have a bar since my I-94 was D/S, but if there is one it will expire in 2 years since I left the US 8 years ago. Embassy never told me that I had a bar or anything. My interview was on 1st of June, CO told me that everything looks good but there will be an AP. My case updated 10 times since then, but it still shows ready. I hope I won’t have to wait 2 more years 🤞🏻

Thanks for the response. At any point did the embassy tell you that they are waiting for the ban to be over?

Hello David. Any updates on your case? Did you get your visa yet? I’m in a very similar situation with status “Ready”.

Congrats! Did it change to issued right after ready? Or ready - admisistrative processing - issued?

Hello there. Any updates with your case?

That’s a relief.. He told me that there is a good chance that I will be approved even though I stated about my overstay on my DS-260 application, and answered truthfully when he asked. If he is the one that will make the determination about the bar, then he possibly would have made it then. (I’m just motivating myself) Thank you for all the help! Also big thank you for letting me know about the FOIA, which came back clean.

Well because there is no way to find out if there was a formal finding by an immigration judge related to my case.. If the bar was triggered when I left the US, shouldn’t it be already in the system so that the CO can see it during the visa interview? I’ve read some people get 212(A) during their interview right away and CO let them know that they have a right to apply for 601 waiver. I received 221(G) and he kept my passport.

He did not. Apparently not for F-1 with D/S. I have seen many examples.

I was out of status for over 3 years, I know I overstayed my welcome. But it’s not about whether I think I accrued an unlawful presence or not. I’m just trying to understand if the USCIS considers my overstay as an unlawful presence if there was no formal finding by an immigration judge. I never applied for any other immigration benefits while I was in the US. CO did not mention anything about work.

Forgive me if I sound dumb, I’m just trying to understand correctly here. I’m going through consular processing, so I’m not present in the US. If the unlawful presence “begins” when an immigration officer finds a violation of status in the course of an application for immigration benefit, doesn’t it mean it would not apply to me since I’m already out of the US for years? I hope it makes sense 😕

This is from the USCIS memorandum. “Example 3: An alien is admitted for "duration of status" as an F-1 nonimmigrant student. One year later, the alien drops out of school, and remains in the United States for one year after dropping out. The alien's status became unlawful when she dropped out of school. Neither USCIS nor an IJ ever makes a finding that the alien was out of status; therefore, she never accrues any unlawful presence for purposes of section 212(a)(9)(B) of the Act. Chapter 40.9.2(b)(1 )(E)(ii). The alien eventually leaves the United States and returns lawfully as a nonimmigrant. While in nonimmigrant status, a Form 1-140 is approved and the alien applies for adjustment of status. Because the alien failed to maintain a lawful status for more than 180 days during her prior sojourn, she is ineligible for adjustment under section 245(c)(2) of the Act, and section 245(k) of the Act does not relieve her of this ineligibility. Under section 245(k) of the Act, the alien is still eligible for adjustment, since the prior failure to maintain status does not apply to make the alien ineligible under section 245(c) of the Act. Also, the alien did not accrue unlawful presence despite the prior unlawful status, and so the alien is not inadmissible under section 212(a)(9)(8) of the Act.“

As you said USCIS tried to address this recently, during Trump administration, but it as far as I remember it was overruled and the law stayed the same as it was for D/S. Here is what I found online. “On February 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a permanent nationwide injunctionblocking the August 8, 2018 USCIS policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The court's order states: On July 31, 2020 DHS filed a motion to dismissits own appeal of the lower court's decision. The appeals court granted that motion and dismissed the appeal on August 3, 2020. USCIS has returned to applying prior policy guidance based on its unlawful presence memo issued on May 6, 2009. Under that prior policy, individuals admitted for duration of status do not begin accruing unlawful presence until an immigration judge finds a status violation in the course of an immigration proceeding, or an immigration officer finds a violation of status in the course of an application for an immigration benefit.”

Will do. Thanks.

I see. Thank you, and sorry for the misunderstanding.