Overstay Options
Oct 4th 2022, 7:49 pm
#1
UK & US Citizen
Thread Starter
Joined: Jul 2003
Location: New Orleans
Posts: 1,276
Overstay Options
This question was posed to me by a friend of a family member of my wife (tenuous I know!) at a family gathering. Probably asked to me because I successfully emigrated to the US, albeit 25+ years ago now.
The young lady in question is South African and has resided in the US for four years. The first two years were either on a a J-1 or F-1. Prior to the visa expiring she booked her flight back to SA with every intention of returning home before the expiration of the visa. However, due to Covid, South Africa closed her borders, she was not allowed to return home and has now overstayed. Because she fears a 10-year ban she has effectively done nothing for the past two years. I asked her if she has spoken to anyone at DHS about any Covid-type clemency extensions, and she says she had, but they said no. I don't know if this was a formal rejection or not.
Any suggestions for her? This is beyond my scope of experience, so I thought I would bring it here to ask.
The young lady in question is South African and has resided in the US for four years. The first two years were either on a a J-1 or F-1. Prior to the visa expiring she booked her flight back to SA with every intention of returning home before the expiration of the visa. However, due to Covid, South Africa closed her borders, she was not allowed to return home and has now overstayed. Because she fears a 10-year ban she has effectively done nothing for the past two years. I asked her if she has spoken to anyone at DHS about any Covid-type clemency extensions, and she says she had, but they said no. I don't know if this was a formal rejection or not.
Any suggestions for her? This is beyond my scope of experience, so I thought I would bring it here to ask.
Oct 4th 2022, 8:05 pm
#2
BE Forum Addict
Joined: Aug 2013
Location: Athens GA
Posts: 2,134
Re: Overstay Options
This question was posed to me by a friend of a family member of my wife (tenuous I know!) at a family gathering. Probably asked to me because I successfully emigrated to the US, albeit 25+ years ago now.
The young lady in question is South African and has resided in the US for four years. The first two years were either on a a J-1 or F-1. Prior to the visa expiring she booked her flight back to SA with every intention of returning home before the expiration of the visa. However, due to Covid, South Africa closed her borders, she was not allowed to return home and has now overstayed. Because she fears a 10-year ban she has effectively done nothing for the past two years. I asked her if she has spoken to anyone at DHS about any Covid-type clemency extensions, and she says she had, but they said no. I don't know if this was a formal rejection or not.
Any suggestions for her? This is beyond my scope of experience, so I thought I would bring it here to ask.
The young lady in question is South African and has resided in the US for four years. The first two years were either on a a J-1 or F-1. Prior to the visa expiring she booked her flight back to SA with every intention of returning home before the expiration of the visa. However, due to Covid, South Africa closed her borders, she was not allowed to return home and has now overstayed. Because she fears a 10-year ban she has effectively done nothing for the past two years. I asked her if she has spoken to anyone at DHS about any Covid-type clemency extensions, and she says she had, but they said no. I don't know if this was a formal rejection or not.
Any suggestions for her? This is beyond my scope of experience, so I thought I would bring it here to ask.
The answer is to consult with an immigration attorney. I suspect that doing nothing has made the outcome far worse than it might have been.
Oct 5th 2022, 3:05 am
#3
BE Commentator
Joined: Feb 2010
Location: Los Angeles, California
Posts: 8,427
Re: Overstay Options
Some information is available here: https://www.uscis.gov/about-us/uscis...se-to-covid-19
The answer is to consult with an immigration attorney. I suspect that doing nothing has made the outcome far worse than it might have been.
The answer is to consult with an immigration attorney. I suspect that doing nothing has made the outcome far worse than it might have been.
Oct 5th 2022, 6:06 pm
#4
Forum Regular
Joined: Jan 2017
Posts: 246
Re: Overstay Options
We need to know what status and date it says on her I-94, and what she did when she "spoke" to DHS. F-1 is almost always admitted for "D/S". Most types of J-1 are admitted for "D/S". If her I-94 says "D/S", then she likely has not accrued any "unlawful presence", and thus will not trigger a ban upon leaving the US.
The unlawful presence ban is a 3-year ban if she accrued 180 days of unlawful presence and then leaves the US, and a 10-year ban if she accrued 1 year of unlawful presence and then leaves the US. There are only 3 ways someone can start to accrue "unlawful presence":
In the likely case that she was admitted for "D/S" and did not apply for any benefit nor was placed in removal proceedings, she did not accrue any unlawful presence and thus would not trigger a ban upon leaving the US.
See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(1)(E)(ii) (on page 76 of this PDF):
And 9 FAM 302.11-3(B)(1).b(2):
9 FAM 302.11-3(B)(1).d:
That said, even if she won't have a ban, that doesn't mean she will be able to get another visa or enter the US. Most types of nonimmigrant visas and entry on most types of nonimmigrant statuses can be denied for "failure to overcome the presumption of immigrant intent" if there is anything the officer doesn't like about her situation. And being out of status for years is definitely a negative factor that the officer is not going to like.
The unlawful presence ban is a 3-year ban if she accrued 180 days of unlawful presence and then leaves the US, and a 10-year ban if she accrued 1 year of unlawful presence and then leaves the US. There are only 3 ways someone can start to accrue "unlawful presence":
- They stay past the date on their I-94
- They apply for a benefit to USCIS and it was denied with the determination that they were out of status
- They were in removal proceedings in immigration court and were determined to be out of status by an immigration judge
In the likely case that she was admitted for "D/S" and did not apply for any benefit nor was placed in removal proceedings, she did not accrue any unlawful presence and thus would not trigger a ban upon leaving the US.
See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(1)(E)(ii) (on page 76 of this PDF):
(ii) Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge's order. It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated.
b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include:
(2) (U) For individuals inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue the day after the formal finding is made;
(2) (U) For individuals inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue the day after the formal finding is made;
d. (U) For persons who have been admitted for duration of status (DOS) (as is usually the case with individuals in A, G, F, J, and I visa status), unlawful presence will not accrue unless DHS, IJ, or the BIA finds a status violation in the context of a request for an immigration benefit or during removal proceedings. This finding of status violation by the DHS, an IJ, or the BIA will cause a period of "unlawful presence" to begin. In DOS cases where DHS or an IJ or the BIA makes a formal status violation finding, the individual begins accruing unlawful presence on the day after the finding (i.e., the date the finding was published /communicated). For example, if an applicant presents a letter from DHS dated December 1, 2008, that says the applicant was out of status starting on May 28, 2001, the applicant began to accrue unlawful presence as of December 2, 2008, not May 28, 2001.
Oct 5th 2022, 8:11 pm
#5
Deep in the woods of CT
Joined: Feb 2010
Posts: 7,002
Re: Overstay Options
This question was posed to me by a friend of a family member of my wife (tenuous I know!) at a family gathering. Probably asked to me because I successfully emigrated to the US, albeit 25+ years ago now.
The young lady in question is South African and has resided in the US for four years. The first two years were either on a a J-1 or F-1. Prior to the visa expiring she booked her flight back to SA with every intention of returning home before the expiration of the visa. However, due to Covid, South Africa closed her borders, she was not allowed to return home and has now overstayed. Because she fears a 10-year ban she has effectively done nothing for the past two years. I asked her if she has spoken to anyone at DHS about any Covid-type clemency extensions, and she says she had, but they said no. I don't know if this was a formal rejection or not.
Any suggestions for her? This is beyond my scope of experience, so I thought I would bring it here to ask.
The young lady in question is South African and has resided in the US for four years. The first two years were either on a a J-1 or F-1. Prior to the visa expiring she booked her flight back to SA with every intention of returning home before the expiration of the visa. However, due to Covid, South Africa closed her borders, she was not allowed to return home and has now overstayed. Because she fears a 10-year ban she has effectively done nothing for the past two years. I asked her if she has spoken to anyone at DHS about any Covid-type clemency extensions, and she says she had, but they said no. I don't know if this was a formal rejection or not.
Any suggestions for her? This is beyond my scope of experience, so I thought I would bring it here to ask.
