Laiwun

Hi,

I am a Canadian citizen and was studying in the U.S. on an F-1 visa
with a D/S expiration (expires upon completion of program, if no longer
a student, etc.).
I recently graduated at the beginning of May, and in the process of
finding employment (both in Canada & the U.S.), I did not realize that
my 60 days of grace period to remain in the U.S. ran out just last week
and I am now out-of-status.
Now, about a month ago I have found a church in the U.S. that will hire
me, but we are still in final negotiations for a contract. Once job
offer is finalized, I was going to apply for an R-1 visa, but have not
yet started the application yet.

I am hoping to stay in the U.S. for another month because I have a
church conference to attend and want to avoid the trouble of travelling
back and forth with my family (including a 6-month old son) if at all
possible. I am also afraid that if I leave now (with my out-of-status
on record), I may have trouble getting back in for this church
conference (which I MUST attend).

I have several questions:

1) Once I leave the U.S. and submit my I-94 for departure, will the
out-of-status situation be automatically entered into my records? If
so, will my application for an R-1 visa be affected by my out-of-status
record?

2) Does it make a difference the length of time I stay in the U.S.
being out-of-status (as long as I do not exceed 180 days for the
automatic 3 year ban)? i.e. Will my chances of getting an R-1 visa be
affected by whether I leave 1-2 weeks from when I started my
out-of-status or whether I leave 1 month from when I started my
out-of-status?

3) Is there any possibility for me to get an R-1 visa in the U.S. while
being out-of-status? Is it better for me to personally apply for the
visa or for the church to apply on my behalf?

4) If I apply for an R-1 visa back in my home country Canada, will I
have any problems related to my previous out-of-status situation? Can I
apply for my R-1 visa immediately, or do I need to wait for a certain
time after my return to Canada? If so, how long?

5) While applying for the R-1 visa back in my home country Canada, and
given my out-of-status record, would I be able to travel/fly to the
U.S. for pleasure at that time? Or will they give me trouble in
suspicion of my intent?

Thank you so much for your help. I have only learned about these
out-of-status issues yesterday and would really appreciate any help.

laiwun

Ray

Criteria for Determining Religious Worker's Eligibility

To qualify for the R1 visa, you must fulfill the following requirements:

1. You must be a member of a religious denomination having a bona fide non-profit religious organization in the U.S.

2. The religious denomination or the affiliate to which you belong is exempt from taxation, or the religious denomination qualifies for tax-exempt status

3. You have been a member of the organization for at least two years immediately preceding your admission into the U.S.

4. You plan to enter the U.S. solely to carry on the vocation of a minister of that denomination or at the request of the organization, you are entering the U.S. to work in a religious profession, occupation or vocation for the denomination or for an organization affiliated with the denominations

5. You have resided and been physically present outside the U.S. for the immediate prior year if you have previously spent five years in the U.S. in the R1 classification

6. You intend to leave the U.S. on completion of your authorized stay


Do you fulfill all the requirement ..particularly number three...

NCTarheel

With F-1 status, although you are out-of-status, unlawful presence does not necessarily start from the 61st day. You don't begin to accrue unlawful presence until an official determination to that effect has been made. If a DHS official or an immigration judge declares an individual to be unlawfully present in the United States as a result of the Visa Overstay, the unlawful presence will begin on the date of the DHS decision – not the date the individual violated his/her status. The 3 or 10 year ban depends on that.

Laiwun

Thanks for your reply, Ray.

Yes, I fulfill all the requirements. My study on which I came in with
my F-1 was for pastoral ministry in the Seminary. I have been a
(baptized) member of my church since I was a young teenager - for about
16 years now.

I should have no problems fulfilling the Religious Worker eligibility.
My only concern is my overstay on my F-1.


Ray wrote:

    > Criteria for Determining Religious Worker's Eligibility
    > To qualify for the R1 visa, you must fulfill the following
    > requirements:
    > 1. You must be a member of a religious denomination having a bona
    > fide non-profit religious organization in the U.S.
    > 2. The religious denomination or the affiliate to which you belong is
    > exempt from taxation, or the religious denomination qualifies for
    > tax-exempt status
    > 3. You have been a member of the organization for at least two years
    > immediately preceding your admission into the U.S.
    > 4. You plan to enter the U.S. solely to carry on the vocation of a
    > minister of that denomination or at the request of the
    > organization, you are entering the U.S. to work in a religious
    > profession, occupation or vocation for the denomination or for an
    > organization affiliated with the denominations
    > 5. You have resided and been physically present outside the U.S. for
    > the immediate prior year if you have previously spent five years in
    > the U.S. in the R1 classification
    > 6. You intend to leave the U.S. on completion of your authorized stay
    > Do you fulfill all the requirement ..particularly number three...
    >
    > --
    > Posted via http://britishexpats.com

Laiwun

How would a DHS official or immigration judge declare that I am
unlawfully present? (i.e. What situations would bring me before them?
And how would i be able to avoid such situations?)

I am not so much concerned about the 3 or 10 year ban, since I am not
planning on staying the 180+ days that would trigger the bans. I am
concerned about how my out-of-status situaiton might affect the
application of my (R-1) work visa, or even regular travel (for
pleasure) into the States. Does my out-of-status get recorded into
their system somewhere? Or does that just happen if I am declared
"unlawfully present"?

Thanks for your help.

NCTarheel wrote:

    > With F-1 status, although you are out-of-status, unlawful presence does
    > not necessarily start from the 61st day. You don't begin to accrue
    > unlawful presence until an official determination to that effect has
    > been made. If a DHS official or an immigration judge declares an
    > individual to be unlawfully present in the United States as a result of
    > the Visa Overstay, the unlawful presence will begin on the date of the
    > DHS decision - not the date the individual violated his/her status.
    > The 3 or 10 year ban depends on that.
    >
    > --
    > Posted via http://britishexpats.com

pianoplayer

Like what was said before, if you are in F1 status, your I94 says D/S and overstay time only starts when an official or judge declares you as out of status. Therefore, you will not actually have accrued official overstay time right now,

I am not sure if you will be asked about whether you left before your grace period ended when applying for your next visa. If so, you will have to tell the truth, and I do not know how this will affect the visa officer's decision. Is there no way for you to leave ASAP and negotiate your contract over the phone/e-mail? A couple of days overstay may not look too bad, but much longer could be perceived badly, even if the overstay is not official. Remember, consular officials and USCIS officials have a lot of discretion.