Alex

I entered the US on an H1-B visa and had my I-94
stamped until Oct.29, 2003. However I have left
the job in Dec. 2002 and started attending the university
as a full-time student. INS has subsequently denied
a change of status request (change from H-1B to F-1)
in May 2003 since I have submitted it late. I have not
attempted to appeal this decision, and have graduated
in november 2003.

What's the difference between being "out of status"
and "unlawful presence", and
when do I start accumulating time towards 3 year ban,
would that be from the date of INS decision, or from
the expiration date on the I-94, or exp. date plus 180 days?
Confused -- Thanks a lot,
alex.

Jozef

"Alex" <[email protected]> wrote in message
news:[email protected]...
    > I entered the US on an H1-B visa and had my I-94
    > stamped until Oct.29, 2003. However I have left
    > the job in Dec. 2002 and started attending the university
    > as a full-time student. INS has subsequently denied
    > a change of status request (change from H-1B to F-1)
    > in May 2003 since I have submitted it late. I have not
    > attempted to appeal this decision, and have graduated
    > in november 2003.
    > What's the difference between being "out of status"
    > and "unlawful presence",

Here's Stuart's excellent summary:

Out of status means that you have violated some condition of your
admission - for example your course has ended, you accept unauthorized
employment, you quit etc. Note that out of status *does* mean that you
are illegally present in the US.

Unlawful presence is time out of status that the INS (USCIS / CBP) has
specifically notified you that you are out of status. Time in unlawful
presence counts towards the automatic bars.

For a duration specific entry, the date you begin to accrue unlawful
presence is the "until" date on an I-94, or the date that an INS officer
informs you that you are out of status, or that an Immigration judge
informs you that you are out of status and deportable

For someone in Duration of Status entry, there is no "until" date. and
so in this case, unlawful presence only commences with the INS informs
you that you are out of status or an Immigration Judge informs you are
out of status and therefore deportable.

See http://www.shusterman.com/ds.html

You are hit with a bar after 180 days of "unlawful presence".
<<

    > and
    > when do I start accumulating time towards 3 year ban,
    > would that be from the date of INS decision, or from
    > the expiration date on the I-94, or exp. date plus 180 days?

You began to accrue unlawful presence from the date of the C/S denial. Since
it has been more than 180 days, you are already subject to the 3 year bar.
If you accrue 12 months of UP, the bar is 10 years.

Alex

"Jozef" <jozef.*take this out*[email protected]> wrote in message news:<[email protected]>. ..

    > Here's Stuart's excellent summary:
    >
    > >>
    > Out of status means that you have violated some condition of your
    > admission - for example your course has ended, you accept unauthorized
    > employment, you quit etc. Note that out of status *does* mean that you
    > are illegally present in the US.
    >
    > Unlawful presence is time out of status that the INS (USCIS / CBP) has
    > specifically notified you that you are out of status. Time in unlawful
    > presence counts towards the automatic bars.
    >
    > For a duration specific entry, the date you begin to accrue unlawful
    > presence is the "until" date on an I-94, or the date that an INS officer
    > informs you that you are out of status, or that an Immigration judge
    > informs you that you are out of status and deportable
    >
    > For someone in Duration of Status entry, there is no "until" date. and
    > so in this case, unlawful presence only commences with the INS informs
    > you that you are out of status or an Immigration Judge informs you are
    > out of status and therefore deportable.
    >
    > See http://www.shusterman.com/ds.html
    >
    > You are hit with a bar after 180 days of "unlawful presence".
    > <<
    >
    > > and
    > > when do I start accumulating time towards 3 year ban,
    > > would that be from the date of INS decision, or from
    > > the expiration date on the I-94, or exp. date plus 180 days?
    >
    > You began to accrue unlawful presence from the date of the C/S denial. Since
    > it has been more than 180 days, you are already subject to the 3 year bar.
    > If you accrue 12 months of UP, the bar is 10 years.


Thank you... indeed an excellent summary.
I've read the contents of the link to Shusterman's site you've posted
above. One paragraph seems to be most interesting:

(quote)
E. Except in cases where the alien either entered without inspection
(EWI) or stayed beyond the date specified on the I-94 (overstay),
conoffs may not refuse an alien under 9B unless INS or an IJ has made
a formal finding that the alien violated status. Other than in
overstay and EWI cases, a conoff s belief that a particular alien
violated status is not/not in itself a sufficient basis for a 9B
refusal. Even if the alien admits to an apparent status violation
(other than an overstay or EWI), that would not be a basis for a 9B
finding, absent a prior INS or IJ finding of a status violation. On
the other hand, a finding by conoff that the alien entered without
inspection or overstayed a specified date on the I-94 may be a proper
basis, in and of itself, for a 9B refusal, assuming the alien had
accrued the requisite period of unlawful presence, no prior INS or IJ
finding is required in such cases.
(end quote)

That's hilarious! The way I understand this, if I hadn't applied for
a change of status with INS, but simply got my degree and left, I
would not have been subject to any ban, and could enter the US again,
say, on an H-1B visa. This doesn't make any sense.

INS screwed up the whole thing from the very beginning (don't they
always). They have lost the original application (I have tracking
information that it was delivered, but the check wasn't cashed, and I
haven't received any reply). That's why my second application was
late, and then I was too busy with my thesis to deal with this mess.

BTW (theoretically) how likely is the official at
the consulate to be aware of INS denying my application if I apply for
a visa
again in the next 3 years?
--Alex

Jozef

"Alex" <[email protected]> wrote in message
news:[email protected]...
    > >
    > > You began to accrue unlawful presence from the date of the C/S denial.
Since
    > > it has been more than 180 days, you are already subject to the 3 year
bar.
    > > If you accrue 12 months of UP, the bar is 10 years.
    > Thank you... indeed an excellent summary.
    > I've read the contents of the link to Shusterman's site you've posted
    > above. One paragraph seems to be most interesting:
    > (quote)
    > E. Except in cases where the alien either entered without inspection
    > (EWI) or stayed beyond the date specified on the I-94 (overstay),
    > conoffs may not refuse an alien under 9B unless INS or an IJ has made
    > a formal finding that the alien violated status. Other than in
    > overstay and EWI cases, a conoff s belief that a particular alien
    > violated status is not/not in itself a sufficient basis for a 9B
    > refusal. Even if the alien admits to an apparent status violation
    > (other than an overstay or EWI), that would not be a basis for a 9B
    > finding, absent a prior INS or IJ finding of a status violation. On
    > the other hand, a finding by conoff that the alien entered without
    > inspection or overstayed a specified date on the I-94 may be a proper
    > basis, in and of itself, for a 9B refusal, assuming the alien had
    > accrued the requisite period of unlawful presence, no prior INS or IJ
    > finding is required in such cases.
    > (end quote)
    > That's hilarious! The way I understand this, if I hadn't applied for
    > a change of status with INS, but simply got my degree and left, I
    > would not have been subject to any ban, and could enter the US again,
    > say, on an H-1B visa.

You are exactly right. You would have been out of status, but you wouldn't
have begun to accrue unlawful presence until the expiration date on your
I-94 card, Oct. 2003. Sometimes, in immigration matters, people are punished
when attempting to do the right thing. (It happened to me)

    > This doesn't make any sense.
    > INS screwed up the whole thing from the very beginning (don't they
    > always). They have lost the original application (I have tracking
    > information that it was delivered, but the check wasn't cashed, and I
    > haven't received any reply). That's why my second application was
    > late, and then I was too busy with my thesis to deal with this mess.

Darn shame: you could have filed a Motion to Reopen or Reconsider after
receiving the I-539 denial together with the tracking information of your
first filing. You stood a good chance of getting the change of status
approved.

    > BTW (theoretically) how likely is the official at
    > the consulate to be aware of INS denying my application if I apply for
    > a visa
    > again in the next 3 years?

It's in their system, so they will be aware of it. You will have some
explaining to do but considering the circumstances of your case you
shouldn't have too much trouble securing a visa. Unfortunately, the bars are
automatic and since you accrued more than 180 days of unlawful presence you
are inadmissible for 3 years from the moment you left the US, even if you
have a visa.

Alex

"Jozef" <jozef.*take this out*[email protected]> wrote in message news:<[email protected]>.. .
    > "Alex" <[email protected]> wrote in message

    > > This doesn't make any sense.
    > > INS screwed up the whole thing from the very beginning (don't they
    > > always). They have lost the original application (I have tracking
    > > information that it was delivered, but the check wasn't cashed, and I
    > > haven't received any reply). That's why my second application was
    > > late, and then I was too busy with my thesis to deal with this mess.
    >
    > Darn shame: you could have filed a Motion to Reopen or Reconsider after
    > receiving the I-539 denial together with the tracking information of your
    > first filing. You stood a good chance of getting the change of status
    > approved.

When I filed, I enclosed a tracking info and a letter with the
explanation -- I don't think they even looked at it. But I suppose
the motion gets more scrutiny. Oh well.
Thank you very much for your kind explanations!
--alex.