jck777

Here's the facts of my situation: Came to US on F1 visa in 2002, obtained 4year degree, did OPT for 1 year.

I then started a masters on a new I-20. I dropped out of the masters in 2008 and thus became out of status. I did not leave the US until recently so i overstayed by over a year.

My passport I-94 is marked D/S and i have never had any contact from or come to the attention of immigration or law enforcement officers. I left the country by my own decision.

The questions i now have are: I have read conflicting things online. Am i subject to the 10year ban for overstaying? Again my passport I-94 is marked D/S not sure if thats a factor. Also if i wanted to go back to the US would i be able to apply on the VWP or would i now need to go the B2 route? And finally if infact i am subject to the 10year ban, how do i go about even finding out the status of the ban and when it would expire? I have never had contact with immigration so bringing it to the attention doesnt seem wise.

Also i came to the US from Ireland and am an irish national. Thanks for any help anyone can give.

dreamercon

You are not subject to the three or ten year bar for overstaying since you have not accrued any unlawful presence. However, you violated your status. While the US doesn't have to bar you from coming back by law, border or consular officials can use their discretion to prevent you from coming back if they think you are likely to violate your status or overstay in the future.

You are eligible to use the Visa Waiver Program, if you successfully obtain an ESTA, but once again border officials can use their discretion and refuse you admission to the United States.

jck777

Thank you for taking the time to read my issue and reply. I keep reading on other forums that when i left i triggered the ban. I understand ill be under more scrutiny when applying for visas in the future but the main issue i want to clear up is if i did infact trigger the 10year ban when i left the country or not.

If infact i am not facing the ban, why is it that people on F1 or with I-94 D/S avoid the ban when overstaying vs VWP overstayers?

If anyone else can give any more insight that would great. Thanks for the help, this is a great forum,wish i discovered it earlier.

Also i just asked on some online lawyer forum and he said "You are marked as overstayed, so that means that you might be banned, and your future applications might be denied, BUT a year is not bad at all, and all you have to do is use a I-601 waiver with your future applications for visas and travel to the USA, and it'll likely be ok."

Seems like strange advice, i dont think id even qualify(or most likely be rejected) for he I-601 from what i heard.

dreamercon

I am very confident about the advice I gave you. Read here if you don't believe me - this is from the FAM that consular officials use to interpret the INA.

http://www.state.gov/documents/organization/87120.pdf

"For persons who have been admitted for duration of status (DOS) (as is usually the case with aliens in A, G, F, J, and I visa status), unlawful presence will not accrue unless an immigration officer or immigration judge (IJ) finds a status violation in the context of a request for an immigration benefit or a deportation proceeding. Therefore, your belief that an alien violated his or her status in the United States is not, in itself, sufficient for an INA 212(a)(9)(B) finding, unless the alien entered without having been admitted or stayed beyond the Form I-94 specified date. Otherwise, only a finding of violation of status by the DHS or an IJ can cause a period of "unlawful presence" to begin."

ian-mstm

Dreamercon is correct - you are not facing a ban... and you can thank the D/S notation for that. In order for a determination to be made as to whether or not you have violated your status, that knowledge must first come to the attention of the US government. Since it almost never does, no determination is ever made. Bottom line... no ban, since there has been no unlawful presence.


Scare tactics... intended to get you to pony up $$ for a consult.

Ian

jck777

Thanks fellas for the info and clearing up my issues.

So when the school records show to SEVIS that i stopped taking classes that didn't apply the ban?

If/when i try to go to america to visit,should i apply on the VWP or through the B2?

Also do you know to what extend the overstay would affect my chances of getting a work visa, such as the H1B in the future?

Thanks again

henryh

Correct.

You could try either, I'm not sure which would have the better chance of success.

In principle it shouldn't affect an H-1B application. Your previous violation of status (not overstay) could be interpreted as showing immigrant intent, but such intent does not prejudice an H-1B application.

Did you work between dropping out from your Master's and leaving the country?

scrubbedexpat099

Probably not a good idea to go for a B Visa.

jck777

No i never worked at any point legally or illegally.

BritishGuy36

Apply for ESTA and see what it says. If it says ok, use the VWP.

Applying for a B visa only draws unneeded attention to your case and may result in an official judging your situation adversely and a visa denial. Then you'll have to declare that denial on all VWP entries which in itself could well lead to secondary on every entry attempt, and uncomfortable questioning.

Best not to poke the sleeping bear.

augigi

Doesn't doing OPT mean you did work? Or did you mean you didn't work during overstay? Confusing to say you "never" worked "at any point"...

jck777

OPT gives you the right to work but you don't have to have a job offer or anything to be accepted. Even though i was eligible to work during the 12month period i never started any employment on the OPT, i looked but couldnt find anything. When i say i did OPT i mean i was in possession of the authorization EAD card and continued to be legally in the country at that time. I then used the time to apply for Masters programs,got accepted,got a new I-20 and started in a masters.

I never worked at any point in the us.

elliep

I believe you may be mistaken in regards to not having to work on OPT. I was under the impression that you were allowed no more than 90 days of unemployment in the year of your OPT so you couldn't just spend the year unemployed.

More than happy to be corrected on this, but my ISS dept was adamant about this. This was the one reason I didn't take OPT as with the job market as it is, it was highly unlikely I'd find a job.

jck777

You are right about the 90day rule but the International admissions officers of various schools told me its never enforced. I definitely spent more than 90days not working but I was also able to successfully gain admission to a masters(cleared through SEVIS)during the OPT period so i don't think it will directly affect my original concerns on my violation of status.

elliep

Fair enough!! I think I must be overly paranoid etc when it comes to things like that...I try to stay off the radar as much as possible!!