Nick

I am totally stress out by my wife situation in Taipei. She has been
in the US for the last 13years and traveled back and fore to the US
frequently without any problems. A few days ago, she has been accused
of "out of status" and barred from coming into the US for the next 3
years.

The INS consular wrote this on her change of status application:

Unlawful presence in the US for 180 plus days under section 212A
9B1. Barred from entry to the US from Feb14 2003 -> Feb14 2006

Furthermore, they cancelled her current H4 visa in her passport!

How it happened :

I am currently holding an O-1 visa. I recently switched from H-1B
because my H1-B expires this 3/14/2003 same goes for my wife with her
H4. Now my new O-1 visa is valid from 8/14/2002 till 8/14/2005. My
attorney told me that my wife needs to travel back to her own country
and get a new visa stamp and change her status from a H4 to 0-3.
Sounds straight forward and simple.

When she presented all her records and college transcripts, the
consular found that she was late on enrolling for her internship to
keep her in status. She explained that she was having a hard time
finding internship position locally in Savannah, Georgia and had to
move to a bigger city where there are more opportunities. (She is a
Furniture Design major: Masters) At the same time she wasn't aware of
the immigration law of "unlawful presence" of 3/10 bar that started
on April 1 1997 - Oct 1 1997. Furthermore, she explain the problem to
her professor and he approved her internship search in another city
and told her that it would be all right if she finds it later.

So, in her transcripts there was a time gap from Summer 96 -> Spring
98. She later found her internship in late Dec 97 and enrolled her
internship class with the school in Jan 98 and got her grades in
Spring 98. I don't know why the consular wrote 180+ days??? Starting
from when???

I am shocked when I got the news and totally confused about the
section 212A 9B1.

Then, later I found

http://www.shusterman.com/ds.html
F. In cases where the unlawful presence determination is based on an
INS or IJ finding of a status violation, the clock starts to run from
the date of the INS or IJ determination, not/not from the date on
which the alien actually began violating status. For example, if an
alien enters on an F visa on September 1, 1997, drops out of school on
October 1, 1997, and fails to depart, and if the INS or an IJ
subsequently makes a finding of a status violation on, say, February
1, 1999, the unlawful presence clock begins to run on February 1,
1999, not on October 1, 1997, and the alien would not be subject to 9B
unless he remained in the U.S. without authorization for an additional
101 (sic - This number should be "181".) days or more after the
February 1, 1999, determination.
Now, I am desperately seeking legal advise and willing to pay to help
lift the 3 years bar. Could someone please get me some advise on this
situation and perhaps point me to a good attorney. I'm in Oakland, CA.

Thank you so much for reading.

Nick F.

Ingo Pakleppa

It sounds like the consular officer was wrong. By the way, this was a DoS
officer, not INS, and it was a visa application, not a change of status
application.

That is, assuming that at the time, she had an F-1 and her I-94 had no
expiration date, but said "D/S".

Unfortunately, there is no appeal to consular decisions, which makes
matters more complicated. But you can either request that they reconsider,
or reapply if you have substantial new evidence - which you do have.

Here is what I would do:

- request reconsideration and show evidence that at the time of the
alleged overstay, her I-94 showed no expiration date but "D/S". Also find
the relevant section of the law that describes exactly when the clock
ticks.

- contact your immigration attorney, and have him write a letter pointing
out the legal points of why she has not accrued unlawful presence. Include
that with her request to reconsider.

- contact your Congressperson.

On Sun, 09 Mar 2003 09:56:28 +0000, nick wrote:

    > I am totally stress out by my wife situation in Taipei. She has been
    > in the US for the last 13years and traveled back and fore to the US
    > frequently without any problems. A few days ago, she has been accused
    > of "out of status" and barred from coming into the US for the next 3
    > years.
    >
    > The INS consular wrote this on her change of status application:
    >
    > Unlawful presence in the US for 180 plus days under section 212A
    > 9B1. Barred from entry to the US from Feb14 2003 -> Feb14 2006
    >
    > Furthermore, they cancelled her current H4 visa in her passport!
    >
    > How it happened :
    >
    > I am currently holding an O-1 visa. I recently switched from H-1B
    > because my H1-B expires this 3/14/2003 same goes for my wife with her
    > H4. Now my new O-1 visa is valid from 8/14/2002 till 8/14/2005. My
    > attorney told me that my wife needs to travel back to her own country
    > and get a new visa stamp and change her status from a H4 to 0-3.
    > Sounds straight forward and simple.
    >
    > When she presented all her records and college transcripts, the
    > consular found that she was late on enrolling for her internship to
    > keep her in status. She explained that she was having a hard time
    > finding internship position locally in Savannah, Georgia and had to
    > move to a bigger city where there are more opportunities. (She is a
    > Furniture Design major: Masters) At the same time she wasn't aware of
    > the immigration law of "unlawful presence" of 3/10 bar that started
    > on April 1 1997 - Oct 1 1997. Furthermore, she explain the problem to
    > her professor and he approved her internship search in another city
    > and told her that it would be all right if she finds it later.
    >
    > So, in her transcripts there was a time gap from Summer 96 -> Spring
    > 98. She later found her internship in late Dec 97 and enrolled her
    > internship class with the school in Jan 98 and got her grades in
    > Spring 98. I don't know why the consular wrote 180+ days??? Starting
    > from when???
    >
    > I am shocked when I got the news and totally confused about the
    > section 212A 9B1.
    >
    > Then, later I found
    >
    > http://www.shusterman.com/ds.html
    > F. In cases where the unlawful presence determination is based on an
    > INS or IJ finding of a status violation, the clock starts to run from
    > the date of the INS or IJ determination, not/not from the date on
    > which the alien actually began violating status. For example, if an
    > alien enters on an F visa on September 1, 1997, drops out of school on
    > October 1, 1997, and fails to depart, and if the INS or an IJ
    > subsequently makes a finding of a status violation on, say, February
    > 1, 1999, the unlawful presence clock begins to run on February 1,
    > 1999, not on October 1, 1997, and the alien would not be subject to 9B
    > unless he remained in the U.S. without authorization for an additional
    > 101 (sic - This number should be "181".) days or more after the
    > February 1, 1999, determination.
    > Now, I am desperately seeking legal advise and willing to pay to help
    > lift the 3 years bar. Could someone please get me some advise on this
    > situation and perhaps point me to a good attorney. I'm in Oakland, CA.
    >
    > Thank you so much for reading.
    >
    > Nick F.

Nick

yes, this is a DOS office not INS. she was at the US consulate in
Taipei. if the Dos office is wrong i will appeal what ever it
takes!!!!!
This is people lifes that they are dealing with. how can they do
that!!! what has america become!???? ugly...

her I-94 is valid till 3/14/2003 but she was already out of the US on
2/14/2003 a month before it expires.!

during the time when she was looking for she internship. her I-20 is
still valid

- I-20 : 5/16/95 -> 5/16/98
- enrolled for internship program 1/6/98
- professor endorse I-20 for practical training 4/20/98
- practical training application send out 4/24/98
- got her practical training ID in the mail 7/3/98 (valid 6/11/98 -
6/11/99)
- switch to H4 valid from 3/26/99 -> 3/14/2001
- H4 extension -> 3/14/2003

Dos office accused her of "out of status" i think between Summer96 ->
Spring 98
Because he did see the transcripts in between those dates.

i told her to contact the congress preson in taipei. how can there be
no appeal? no human is perfect! i can this as them abusing they power!

thanks for the advise. please anyone with similiar experience please
advise.

thanks!!!!!!



"Ingo Pakleppa" wrote in message news:...
    > It sounds like the consular officer was wrong. By the way, this was a DoS
    > officer, not INS, and it was a visa application, not a change of status
    > application.
    >
    > That is, assuming that at the time, she had an F-1 and her I-94 had no
    > expiration date, but said "D/S".
    >
    > Unfortunately, there is no appeal to consular decisions, which makes
    > matters more complicated. But you can either request that they reconsider,
    > or reapply if you have substantial new evidence - which you do have.
    >
    > Here is what I would do:
    >
    > - request reconsideration and show evidence that at the time of the
    > alleged overstay, her I-94 showed no expiration date but "D/S". Also find
    > the relevant section of the law that describes exactly when the clock
    > ticks.
    >
    > - contact your immigration attorney, and have him write a letter pointing
    > out the legal points of why she has not accrued unlawful presence. Include
    > that with her request to reconsider.
    >
    > - contact your Congressperson.
    >
    > On Sun, 09 Mar 2003 09:56:28 +0000, nick wrote:
    >
    > > I am totally stress out by my wife situation in Taipei. She has been
    > > in the US for the last 13years and traveled back and fore to the US
    > > frequently without any problems. A few days ago, she has been accused
    > > of "out of status" and barred from coming into the US for the next 3
    > > years.
    > >
    > > The INS consular wrote this on her change of status application:
    > >
    > > Unlawful presence in the US for 180 plus days under section 212A
    > > 9B1. Barred from entry to the US from Feb14 2003 -> Feb14 2006
    > >
    > > Furthermore, they cancelled her current H4 visa in her passport!
    > >
    > > How it happened :
    > >
    > > I am currently holding an O-1 visa. I recently switched from H-1B
    > > because my H1-B expires this 3/14/2003 same goes for my wife with her
    > > H4. Now my new O-1 visa is valid from 8/14/2002 till 8/14/2005. My
    > > attorney told me that my wife needs to travel back to her own country
    > > and get a new visa stamp and change her status from a H4 to 0-3.
    > > Sounds straight forward and simple.
    > >
    > > When she presented all her records and college transcripts, the
    > > consular found that she was late on enrolling for her internship to
    > > keep her in status. She explained that she was having a hard time
    > > finding internship position locally in Savannah, Georgia and had to
    > > move to a bigger city where there are more opportunities. (She is a
    > > Furniture Design major: Masters) At the same time she wasn't aware of
    > > the immigration law of "unlawful presence" of 3/10 bar that started
    > > on April 1 1997 - Oct 1 1997. Furthermore, she explain the problem to
    > > her professor and he approved her internship search in another city
    > > and told her that it would be all right if she finds it later.
    > >
    > > So, in her transcripts there was a time gap from Summer 96 -> Spring
    > > 98. She later found her internship in late Dec 97 and enrolled her
    > > internship class with the school in Jan 98 and got her grades in
    > > Spring 98. I don't know why the consular wrote 180+ days??? Starting
    > > from when???
    > >
    > > I am shocked when I got the news and totally confused about the
    > > section 212A 9B1.
    > >
    > > Then, later I found
    > >
    > > http://www.shusterman.com/ds.html
    > >>>>>>
    > > F. In cases where the unlawful presence determination is based on an
    > > INS or IJ finding of a status violation, the clock starts to run from
    > > the date of the INS or IJ determination, not/not from the date on
    > > which the alien actually began violating status. For example, if an
    > > alien enters on an F visa on September 1, 1997, drops out of school on
    > > October 1, 1997, and fails to depart, and if the INS or an IJ
    > > subsequently makes a finding of a status violation on, say, February
    > > 1, 1999, the unlawful presence clock begins to run on February 1,
    > > 1999, not on October 1, 1997, and the alien would not be subject to 9B
    > > unless he remained in the U.S. without authorization for an additional
    > > 101 (sic - This number should be "181".) days or more after the
    > > February 1, 1999, determination.
    > >>>>>>
    > > Now, I am desperately seeking legal advise and willing to pay to help
    > > lift the 3 years bar. Could someone please get me some advise on this
    > > situation and perhaps point me to a good attorney. I'm in Oakland, CA.
    > >
    > > Thank you so much for reading.
    > >
    > > Nick F.

Ingo Pakleppa

On Mon, 10 Mar 2003 02:00:30 +0000, nick wrote:

    > yes, this is a DOS office not INS. she was at the US consulate in
    > Taipei. if the Dos office is wrong i will appeal what ever it
    > takes!!!!!

Well, appeal is the one thing you can't do because DoS decisions are
final. There is some discussion about creating an appeals process, but it
hasn't happened yet.

You can request that the reevaluate your case. That's an informal process,
where you essentially go to the consulate and tell them, "hey, look, I
think you made a mistake here, could you confirm that and fix the
problem?" The consulate is under no obligation to do that, but since there
is no formal appeals process, they often do. Contrary to popular
perception, neither INS not consulates are your enemy per se. Their job
isn't to deny as many applications as possible, but rather to enforce
whatever laws the US has, and in fact at the same time approve as many
cases as possible. I can understand you don't feel about them as your
partners in getting the job (of getting a visa) done, but using this
mindset may well help get through this and succeed.

    > This is people lifes that they are dealing with. how can they do
    > that!!! what has america become!???? ugly...

There are aspects of immigration law that are truly bad. In your case,
though, it was merely one individual who made a wrong decision in a
situation that is not exactly straightforward in the first place.
Remember, visa applications aren't all adjudicated by highly qualified
lawyers, but usually by low-level clerks.

    > her I-94 is valid till 3/14/2003 but she was already out of the US on
    > 2/14/2003 a month before it expires.!

I was talking about the I-20 that she had during the F-1 status, when she
allegedly was unlawfully present. The fact that she now had a valid I-94
is actually evidence in her favor; INS found no problem with her
situation.

    > during the time when she was looking for she internship. her I-20 is
    > still valid
    >
    > - I-20 : 5/16/95 -> 5/16/98
    > - enrolled for internship program 1/6/98
    > - professor endorse I-20 for practical training 4/20/98
    > - practical training application send out 4/24/98
    > - got her practical training ID in the mail 7/3/98 (valid 6/11/98 -
    > 6/11/99)
    > - switch to H4 valid from 3/26/99 -> 3/14/2001
    > - H4 extension -> 3/14/2003
    >
    > Dos office accused her of "out of status" i think between Summer96 ->
    > Spring 98
    > Because he did see the transcripts in between those dates.
    >
    > i told her to contact the congress preson in taipei. how can there be
    > no appeal? no human is perfect! i can this as them abusing they power!

There is no Congressperson in Taipei (at least, no US Congressperson - a
Taiwanese Congressperson can't do much about US laws!) Only US States have
representation in Congress! You will have to contact your own
Congressperson on her behalf.

    > thanks for the advise. please anyone with similiar experience please
    > advise.
    >
    > thanks!!!!!!
    >
    >
    >
    > "Ingo Pakleppa" wrote in message news:...
    >> It sounds like the consular officer was wrong. By the way, this was a DoS
    >> officer, not INS, and it was a visa application, not a change of status
    >> application.
    >>
    >> That is, assuming that at the time, she had an F-1 and her I-94 had no
    >> expiration date, but said "D/S".
    >>
    >> Unfortunately, there is no appeal to consular decisions, which makes
    >> matters more complicated. But you can either request that they reconsider,
    >> or reapply if you have substantial new evidence - which you do have.
    >>
    >> Here is what I would do:
    >>
    >> - request reconsideration and show evidence that at the time of the
    >> alleged overstay, her I-94 showed no expiration date but "D/S". Also find
    >> the relevant section of the law that describes exactly when the clock
    >> ticks.
    >>
    >> - contact your immigration attorney, and have him write a letter pointing
    >> out the legal points of why she has not accrued unlawful presence. Include
    >> that with her request to reconsider.
    >>
    >> - contact your Congressperson.
    >>
    >> On Sun, 09 Mar 2003 09:56:28 +0000, nick wrote:
    >>
    >> > I am totally stress out by my wife situation in Taipei. She has been
    >> > in the US for the last 13years and traveled back and fore to the US
    >> > frequently without any problems. A few days ago, she has been accused
    >> > of "out of status" and barred from coming into the US for the next 3
    >> > years.
    >> >
    >> > The INS consular wrote this on her change of status application:
    >> >
    >> > Unlawful presence in the US for 180 plus days under section 212A
    >> > 9B1. Barred from entry to the US from Feb14 2003 -> Feb14 2006
    >> >
    >> > Furthermore, they cancelled her current H4 visa in her passport!
    >> >
    >> > How it happened :
    >> >
    >> > I am currently holding an O-1 visa. I recently switched from H-1B
    >> > because my H1-B expires this 3/14/2003 same goes for my wife with her
    >> > H4. Now my new O-1 visa is valid from 8/14/2002 till 8/14/2005. My
    >> > attorney told me that my wife needs to travel back to her own country
    >> > and get a new visa stamp and change her status from a H4 to 0-3.
    >> > Sounds straight forward and simple.
    >> >
    >> > When she presented all her records and college transcripts, the
    >> > consular found that she was late on enrolling for her internship to
    >> > keep her in status. She explained that she was having a hard time
    >> > finding internship position locally in Savannah, Georgia and had to
    >> > move to a bigger city where there are more opportunities. (She is a
    >> > Furniture Design major: Masters) At the same time she wasn't aware of
    >> > the immigration law of "unlawful presence" of 3/10 bar that started
    >> > on April 1 1997 - Oct 1 1997. Furthermore, she explain the problem to
    >> > her professor and he approved her internship search in another city
    >> > and told her that it would be all right if she finds it later.
    >> >
    >> > So, in her transcripts there was a time gap from Summer 96 -> Spring
    >> > 98. She later found her internship in late Dec 97 and enrolled her
    >> > internship class with the school in Jan 98 and got her grades in
    >> > Spring 98. I don't know why the consular wrote 180+ days??? Starting
    >> > from when???
    >> >
    >> > I am shocked when I got the news and totally confused about the
    >> > section 212A 9B1.
    >> >
    >> > Then, later I found
    >> >
    >> > http://www.shusterman.com/ds.html
    >> >>>>>>
    >> > F. In cases where the unlawful presence determination is based on an
    >> > INS or IJ finding of a status violation, the clock starts to run from
    >> > the date of the INS or IJ determination, not/not from the date on
    >> > which the alien actually began violating status. For example, if an
    >> > alien enters on an F visa on September 1, 1997, drops out of school on
    >> > October 1, 1997, and fails to depart, and if the INS or an IJ
    >> > subsequently makes a finding of a status violation on, say, February
    >> > 1, 1999, the unlawful presence clock begins to run on February 1,
    >> > 1999, not on October 1, 1997, and the alien would not be subject to 9B
    >> > unless he remained in the U.S. without authorization for an additional
    >> > 101 (sic - This number should be "181".) days or more after the
    >> > February 1, 1999, determination.
    >> >>>>>>
    >> > Now, I am desperately seeking legal advise and willing to pay to help
    >> > lift the 3 years bar. Could someone please get me some advise on this
    >> > situation and perhaps point me to a good attorney. I'm in Oakland, CA.
    >> >
    >> > Thank you so much for reading.
    >> >
    >> > Nick F.

Nick

"Ingo Pakleppa" wrote in message news:...
    > On Mon, 10 Mar 2003 02:00:30 +0000, nick wrote:
    >
    > > yes, this is a DOS office not INS. she was at the US consulate in
    > > Taipei. if the Dos office is wrong i will appeal what ever it
    > > takes!!!!!
    >
    > Well, appeal is the one thing you can't do because DoS decisions are
    > final. There is some discussion about creating an appeals process, but it
    > hasn't happened yet.

sorry, i apologize it was the Consular Officer at the US consulate in
taipei and NOT the DOS. i was confused. Does that mean I can appeal?

    >
    > You can request that the reevaluate your case. That's an informal process,
    > where you essentially go to the consulate and tell them, "hey, look, I
    > think you made a mistake here, could you confirm that and fix the
    > problem?" The consulate is under no obligation to do that, but since there
    > is no formal appeals process, they often do. Contrary to popular
    > perception, neither INS not consulates are your enemy per se. Their job
    > isn't to deny as many applications as possible, but rather to enforce
    > whatever laws the US has, and in fact at the same time approve as many
    > cases as possible. I can understand you don't feel about them as your
    > partners in getting the job (of getting a visa) done, but using this
    > mindset may well help get through this and succeed.
    >
    > > This is people lifes that they are dealing with. how can they do
    > > that!!! what has america become!???? ugly...
    >
    > There are aspects of immigration law that are truly bad. In your case,
    > though, it was merely one individual who made a wrong decision in a
    > situation that is not exactly straightforward in the first place.
    > Remember, visa applications aren't all adjudicated by highly qualified
    > lawyers, but usually by low-level clerks.
    >
    > > her I-94 is valid till 3/14/2003 but she was already out of the US on
    > > 2/14/2003 a month before it expires.!
    >
    > I was talking about the I-20 that she had during the F-1 status, when she
    > allegedly was unlawfully present. The fact that she now had a valid I-94
    > is actually evidence in her favor; INS found no problem with her
    > situation.

the problem wasn't in her I-94. she had a valid D/S through out her
I-20 that i am pretty sure. the problem was because there was a gap
from Summer 96 -Spring 98 in her transcripts and during that time she
was looking for her internship and she later found it and enroll for
her class on 1/6/98.

The consular told her that she needs to be enrolled for a class in
order to keep her student status. but, she had finished all her
classes except her previously enrolled but incomplete Thesis. Still
the consular said then keep enrolled in that Thesis class until you
find your internship....! BTW, the consular was really rude when she
said that and didn't want to hear any explanation. From my personal
experience most of them had sort of a attitude

    >
    > > during the time when she was looking for she internship. her I-20 is
    > > still valid
    > >
    > > - I-20 : 5/16/95 -> 5/16/98
    > > - enrolled for internship program 1/6/98
    > > - professor endorse I-20 for practical training 4/20/98
    > > - practical training application send out 4/24/98
    > > - got her practical training ID in the mail 7/3/98 (valid 6/11/98 -
    > > 6/11/99)
    > > - switch to H4 valid from 3/26/99 -> 3/14/2001
    > > - H4 extension -> 3/14/2003
    > >
    > > Dos office accused her of "out of status" i think between Summer96 ->
    > > Spring 98
    > > Because he did see the transcripts in between those dates.
    > >
    > > i told her to contact the congress preson in taipei. how can there be
    > > no appeal? no human is perfect! i can this as them abusing they power!
    >
    > There is no Congressperson in Taipei (at least, no US Congressperson - a
    > Taiwanese Congressperson can't do much about US laws!) Only US States have
    > representation in Congress! You will have to contact your own
    > Congressperson on her behalf.
    >
    > > thanks for the advise. please anyone with similiar experience please
    > > advise.
    > >
    > > thanks!!!!!!
    > >
    > >
    > >
    > > "Ingo Pakleppa" wrote in message news:...
    > >> It sounds like the consular officer was wrong. By the way, this was a DoS
    > >> officer, not INS, and it was a visa application, not a change of status
    > >> application.
    > >>
    > >> That is, assuming that at the time, she had an F-1 and her I-94 had no
    > >> expiration date, but said "D/S".
    > >>
    > >> Unfortunately, there is no appeal to consular decisions, which makes
    > >> matters more complicated. But you can either request that they reconsider,
    > >> or reapply if you have substantial new evidence - which you do have.
    > >>
    > >> Here is what I would do:
    > >>
    > >> - request reconsideration and show evidence that at the time of the
    > >> alleged overstay, her I-94 showed no expiration date but "D/S". Also find
    > >> the relevant section of the law that describes exactly when the clock
    > >> ticks.
    > >>
    > >> - contact your immigration attorney, and have him write a letter pointing
    > >> out the legal points of why she has not accrued unlawful presence. Include
    > >> that with her request to reconsider.
    > >>
    > >> - contact your Congressperson.
    > >>
    > >> On Sun, 09 Mar 2003 09:56:28 +0000, nick wrote:
    > >>
    > >> > I am totally stress out by my wife situation in Taipei. She has been
    > >> > in the US for the last 13years and traveled back and fore to the US
    > >> > frequently without any problems. A few days ago, she has been accused
    > >> > of "out of status" and barred from coming into the US for the next 3
    > >> > years.
    > >> >
    > >> > The INS consular wrote this on her change of status application:
    > >> >
    > >> > Unlawful presence in the US for 180 plus days under section 212A
    > >> > 9B1. Barred from entry to the US from Feb14 2003 -> Feb14 2006
    > >> >
    > >> > Furthermore, they cancelled her current H4 visa in her passport!
    > >> >
    > >> > How it happened :
    > >> >
    > >> > I am currently holding an O-1 visa. I recently switched from H-1B
    > >> > because my H1-B expires this 3/14/2003 same goes for my wife with her
    > >> > H4. Now my new O-1 visa is valid from 8/14/2002 till 8/14/2005. My
    > >> > attorney told me that my wife needs to travel back to her own country
    > >> > and get a new visa stamp and change her status from a H4 to 0-3.
    > >> > Sounds straight forward and simple.
    > >> >
    > >> > When she presented all her records and college transcripts, the
    > >> > consular found that she was late on enrolling for her internship to
    > >> > keep her in status. She explained that she was having a hard time
    > >> > finding internship position locally in Savannah, Georgia and had to
    > >> > move to a bigger city where there are more opportunities. (She is a
    > >> > Furniture Design major: Masters) At the same time she wasn't aware of
    > >> > the immigration law of "unlawful presence" of 3/10 bar that started
    > >> > on April 1 1997 - Oct 1 1997. Furthermore, she explain the problem to
    > >> > her professor and he approved her internship search in another city
    > >> > and told her that it would be all right if she finds it later.
    > >> >
    > >> > So, in her transcripts there was a time gap from Summer 96 -> Spring
    > >> > 98. She later found her internship in late Dec 97 and enrolled her
    > >> > internship class with the school in Jan 98 and got her grades in
    > >> > Spring 98. I don't know why the consular wrote 180+ days??? Starting
    > >> > from when???
    > >> >
    > >> > I am shocked when I got the news and totally confused about the
    > >> > section 212A 9B1.
    > >> >
    > >> > Then, later I found
    > >> >
    > >> > http://www.shusterman.com/ds.html
    > >> >>>>>>
    > >> > F. In cases where the unlawful presence determination is based on an
    > >> > INS or IJ finding of a status violation, the clock starts to run from
    > >> > the date of the INS or IJ determination, not/not from the date on
    > >> > which the alien actually began violating status. For example, if an
    > >> > alien enters on an F visa on September 1, 1997, drops out of school on
    > >> > October 1, 1997, and fails to depart, and if the INS or an IJ
    > >> > subsequently makes a finding of a status violation on, say, February
    > >> > 1, 1999, the unlawful presence clock begins to run on February 1,
    > >> > 1999, not on October 1, 1997, and the alien would not be subject to 9B
    > >> > unless he remained in the U.S. without authorization for an additional
    > >> > 101 (sic - This number should be "181".) days or more after the
    > >> > February 1, 1999, determination.
    > >> >>>>>>
    > >> > Now, I am desperately seeking legal advise and willing to pay to help
    > >> > lift the 3 years bar. Could someone please get me some advise on this
    > >> > situation and perhaps point me to a good attorney. I'm in Oakland, CA.
    > >> >
    > >> > Thank you so much for reading.
    > >> >
    > >> > Nick F.

Ingo Pakleppa

On Tue, 11 Mar 2003 20:36:31 +0000, nick wrote:

    > "Ingo Pakleppa" wrote in message news:...
    >> On Mon, 10 Mar 2003 02:00:30 +0000, nick wrote:
    >>
    >> > yes, this is a DOS office not INS. she was at the US consulate in
    >> > Taipei. if the Dos office is wrong i will appeal what ever it
    >> > takes!!!!!
    >>
    >> Well, appeal is the one thing you can't do because DoS decisions are
    >> final. There is some discussion about creating an appeals process, but it
    >> hasn't happened yet.
    >
    > sorry, i apologize it was the Consular Officer at the US consulate in
    > taipei and NOT the DOS. i was confused. Does that mean I can appeal?

Consulates are part of DoS. The office in Taipei is not actually a
consulate for political reasons, although it has many of the same
functions. Unfortunately, you can't appeal.

    >>
    >> You can request that the reevaluate your case. That's an informal process,
    >> where you essentially go to the consulate and tell them, "hey, look, I
    >> think you made a mistake here, could you confirm that and fix the
    >> problem?" The consulate is under no obligation to do that, but since there
    >> is no formal appeals process, they often do. Contrary to popular
    >> perception, neither INS not consulates are your enemy per se. Their job
    >> isn't to deny as many applications as possible, but rather to enforce
    >> whatever laws the US has, and in fact at the same time approve as many
    >> cases as possible. I can understand you don't feel about them as your
    >> partners in getting the job (of getting a visa) done, but using this
    >> mindset may well help get through this and succeed.
    >>
    >> > This is people lifes that they are dealing with. how can they do
    >> > that!!! what has america become!???? ugly...
    >>
    >> There are aspects of immigration law that are truly bad. In your case,
    >> though, it was merely one individual who made a wrong decision in a
    >> situation that is not exactly straightforward in the first place.
    >> Remember, visa applications aren't all adjudicated by highly qualified
    >> lawyers, but usually by low-level clerks.
    >>
    >> > her I-94 is valid till 3/14/2003 but she was already out of the US on
    >> > 2/14/2003 a month before it expires.!
    >>
    >> I was talking about the I-20 that she had during the F-1 status, when she
    >> allegedly was unlawfully present. The fact that she now had a valid I-94
    >> is actually evidence in her favor; INS found no problem with her
    >> situation.
    >
    > the problem wasn't in her I-94. she had a valid D/S through out her
    > I-20 that i am pretty sure. the problem was because there was a gap
    > from Summer 96 -Spring 98 in her transcripts and during that time she
    > was looking for her internship and she later found it and enroll for
    > her class on 1/6/98.

I understood that. The I-94 still is key: as long as the I-94 says "D/S",
she does not accrue time towards the bans. So you need to convince the
consular officer of two things:

- during the period in question, she had a D/S I-94
- the law says that unlawful presence does not accrue until either the
I-94 expires, or until INS or an immigration judge informs you that you
are out of status. The key is that merely being out of status alone is not
enough for unlawful presence.

    > The consular told her that she needs to be enrolled for a class in
    > order to keep her student status. but, she had finished all her
    > classes except her previously enrolled but incomplete Thesis. Still
    > the consular said then keep enrolled in that Thesis class until you
    > find your internship....! BTW, the consular was really rude when she
    > said that and didn't want to hear any explanation. From my personal
    > experience most of them had sort of a attitude

The officer is right about that - but wrong about something else. It
appears that she indeed was out of status. The officer overlooked that
there is a subtle but critical difference between "out of status" and
"unlawfully present". That's where the I-94 comes into play.

The clock for the three-year-ban does not start ticking just based on
being out of status, only on unlawfully presence.

Sylvia Ottemoeller

"Ingo Pakleppa" wrote in message
news:[email protected]...

    > It sounds like the consular officer was wrong. By the way, this was a DoS
    > officer, not INS, and it was a visa application, not a change of status
    > application.
    > That is, assuming that at the time, she had an F-1 and her I-94 had no
    > expiration date, but said "D/S".
    > Unfortunately, there is no appeal to consular decisions, which makes
    > matters more complicated. But you can either request that they reconsider,
    > or reapply if you have substantial new evidence - which you do have.
    > Here is what I would do:
    > - request reconsideration and show evidence that at the time of the
    > alleged overstay, her I-94 showed no expiration date but "D/S". Also find
    > the relevant section of the law that describes exactly when the clock
    > ticks.
    > - contact your immigration attorney, and have him write a letter pointing
    > out the legal points of why she has not accrued unlawful presence. Include
    > that with her request to reconsider.
    > - contact your Congressperson.

I agree about getting in touch with the Congressperson.

You also might try to contact the Department of State in Washington D.C.
directly. Start here: http://contact-us.state.gov/. There is no appeal to
the decision of a consular officer when it comes to a question of fact.
However, the Department of State can influence the consular post in a
question of law.

I have seen this happen. For example, one time the Beijing consular post
refused to issue an H-4 visa to a spouse of an H-1B holder, based on intent.
The employer got in touch with someone at the "China desk" at the State
Department, and that person communicated with the Beijing post. The H-4
visa was soon issued.

You see, H-4 holders who happen to be dependents of H-1B holders are allowed
to have dual intent, but H-4 holders who are dependents of H-2 or H-3
holders are not allowed. This is a question of law.

    > On Sun, 09 Mar 2003 09:56:28 +0000, nick wrote:
    > > I am totally stress out by my wife situation in Taipei. She has been
    > > in the US for the last 13years and traveled back and fore to the US
    > > frequently without any problems. A few days ago, she has been accused
    > > of "out of status" and barred from coming into the US for the next 3
    > > years.
    > >
    > > The INS consular wrote this on her change of status application:
    > >
    > > Unlawful presence in the US for 180 plus days under section 212A
    > > 9B1. Barred from entry to the US from Feb14 2003 -> Feb14 2006
    > >
    > > Furthermore, they cancelled her current H4 visa in her passport!
    > >
    > > How it happened :
    > >
    > > I am currently holding an O-1 visa. I recently switched from H-1B
    > > because my H1-B expires this 3/14/2003 same goes for my wife with her
    > > H4. Now my new O-1 visa is valid from 8/14/2002 till 8/14/2005. My
    > > attorney told me that my wife needs to travel back to her own country
    > > and get a new visa stamp and change her status from a H4 to 0-3.
    > > Sounds straight forward and simple.
    > >
    > > When she presented all her records and college transcripts, the
    > > consular found that she was late on enrolling for her internship to
    > > keep her in status. She explained that she was having a hard time
    > > finding internship position locally in Savannah, Georgia and had to
    > > move to a bigger city where there are more opportunities. (She is a
    > > Furniture Design major: Masters) At the same time she wasn't aware of
    > > the immigration law of "unlawful presence" of 3/10 bar that started
    > > on April 1 1997 - Oct 1 1997. Furthermore, she explain the problem to
    > > her professor and he approved her internship search in another city
    > > and told her that it would be all right if she finds it later.
    > >
    > > So, in her transcripts there was a time gap from Summer 96 -> Spring
    > > 98. She later found her internship in late Dec 97 and enrolled her
    > > internship class with the school in Jan 98 and got her grades in
    > > Spring 98. I don't know why the consular wrote 180+ days??? Starting
    > > from when???
    > >
    > > I am shocked when I got the news and totally confused about the
    > > section 212A 9B1.
    > >
    > > Then, later I found
    > >
    > > http://www.shusterman.com/ds.html

    > > F. In cases where the unlawful presence determination is based on an
    > > INS or IJ finding of a status violation, the clock starts to run from
    > > the date of the INS or IJ determination, not/not from the date on
    > > which the alien actually began violating status. For example, if an
    > > alien enters on an F visa on September 1, 1997, drops out of school on
    > > October 1, 1997, and fails to depart, and if the INS or an IJ
    > > subsequently makes a finding of a status violation on, say, February
    > > 1, 1999, the unlawful presence clock begins to run on February 1,
    > > 1999, not on October 1, 1997, and the alien would not be subject to 9B
    > > unless he remained in the U.S. without authorization for an additional
    > > 101 (sic - This number should be "181".) days or more after the
    > > February 1, 1999, determination.

    > > Now, I am desperately seeking legal advise and willing to pay to help
    > > lift the 3 years bar. Could someone please get me some advise on this
    > > situation and perhaps point me to a good attorney. I'm in Oakland, CA.

Ingo Pakleppa

On Wed, 12 Mar 2003 14:11:56 +0000, Sylvia Ottemoeller wrote:

    >
    > "Ingo Pakleppa" wrote in message
    > news:[email protected]...
    >> - contact your Congressperson.
    >
    > I agree about getting in touch with the Congressperson.
    >
    > You also might try to contact the Department of State in Washington D.C.
    > directly. Start here: http://contact-us.state.gov/. There is no appeal to
    > the decision of a consular officer when it comes to a question of fact.
    > However, the Department of State can influence the consular post in a
    > question of law.
    >
    > I have seen this happen. For example, one time the Beijing consular post
    > refused to issue an H-4 visa to a spouse of an H-1B holder, based on intent.
    > The employer got in touch with someone at the "China desk" at the State
    > Department, and that person communicated with the Beijing post. The H-4
    > visa was soon issued.

Good point. I have seen this work in a case where a Consulate in Canada
denied an H-4 because the applicant didn't have an approved H-4 petition
(which doesn't exist) but only an approved H-1B petition with the spouse's
name (I suppose that guy must have been very new at his job!)