[email protected]

My niece is in America and has F-1 visa with D/S notation. She
is "out of status", due to her not having a current I-20. She doesn't
want to stay here since she's out of status. She plans to return to
her homecountry. Only her family and she knows that she's out of
status. Her school does not yet have any knowledge that she's out of
status and her family has not told the school that she's out of status.



My question is: is she subject to the ban? She plans to re-apply for
F-1 in her homecountry and come back here again with new F-1.

crg

She may not have an automatic 10 year bar unless she was found to be out of status by an immigration officer, judge, or adjudicator, or denied an immigration benefit since being out of status.

However, the visa application she proposes to complete asks if she has ever been in the US in violation of the law or violated the terms of a previous visa or admission. The answer to that question is YES.

Lying on the application could be considered as a willful misrepresention of a material fact in order to gain an immigration benefit. That carries a lifetime bar.

Also, there is a student abuser ground of inadmissibility with a 5 year bar pursuant to section 212(a)(6)(G) that could come into play.

"(G) Student visa abusers.-An alien who obtains the status of a nonimmigrant under section 101(a)(15)(F)(i) and who violates a term or condition of such status under section 214(l) is excludable until the alien has been outside the United States for a continuous period of 5 years after the date of the violation."

I'm not 100% certain how one falls under that bar, but I believe it comes into play when a student changes schools without authorization and/or receives public funding.

Maybe someone can chime in as to the specifics as to how this ground is applied.

She will also have a hard time proving nonimmigrant intent considering she's lived unlawfully in the US for so long. Leaving and coming back with a lawfully obtained visa will be very difficult.

Right now, she's subject to arrest, detention, and removal at any time while she's in the US and out of status.

amanda772006

[email protected] wrote:
    > My niece is in America and has F-1 visa with D/S notation. She
    > is "out of status", due to her not having a current I-20. She doesn't
    > want to stay here since she's out of status. She plans to return to
    > her homecountry. Only her family and she knows that she's out of
    > status. Her school does not yet have any knowledge that she's out of
    > status and her family has not told the school that she's out of status.
    > My question is: is she subject to the ban? She plans to re-apply for
    > F-1 in her homecountry and come back here again with new F-1.

If she doesn't want to stay here and plan to return home, what are you
worried about unless she doesn't plan to return home if she is sure
that the immigration office will not track her down and serves her with
the paper.

Folinskyinla

Hi:

I didn't see anything about the person entering to attend a private elementry/secondary school and then transferring to a public elementry/secondar school. Perhaps you are right and that did happen here.

However, I did ask "what bar" they were talking about. Without facts, it can't be answered.

ImmGuru1

While your niece is not subject to the 3/10 year bar because of the D/S
notation on her I-94 and because she has not been adjudicated out of
status, she will have a very difficult time reapplying for an F1 visa
in her homecountry. The embassy will likely deny her application on
214(b) intending immigrant grounds. Depending upon how long she has
overstayed her I-20, she may be eligible for reinstatement while she
remains her in the US. She should consult an attorney.

David
www.katonamir.com

[email protected] wrote:
    > My niece is in America and has F-1 visa with D/S notation. She
    > is "out of status", due to her not having a current I-20. She doesn't
    > want to stay here since she's out of status. She plans to return to
    > her homecountry. Only her family and she knows that she's out of
    > status. Her school does not yet have any knowledge that she's out of
    > status and her family has not told the school that she's out of status.
    > My question is: is she subject to the ban? She plans to re-apply for
    > F-1 in her homecountry and come back here again with new F-1.

[email protected]

ImmGuru1 wrote:
    > While your niece is not subject to the 3/10 year bar because of the D/S
    > notation on her I-94 and because she has not been adjudicated out of
    > status, she will have a very difficult time reapplying for an F1 visa
    > in her homecountry. The embassy will likely deny her application on
    > 214(b) intending immigrant grounds. Depending upon how long she has
    > overstayed her I-20, she may be eligible for reinstatement while she
    > remains her in the US. She should consult an attorney.


thanks for the answer.

crg

I agree that an immigration lawyer is a good idea, however reinstatement doesn't sound plausible. The OP has another post that indicates that the F-1 has been out of status for at least several years.