Possible 601 required ... need your best legal opinion

[Zia80]

OK.. Here's my story ....

F1 student... became out of status last semester of school vdue to school official's error with SEVIS.. Appealed and appealed for a little less than one year , right from the day i found out i was out of status.( found out after one month of being out of status)....

Appeals to change/extend status denied June 16 , 2005.... Met hubby in US March 2005. Got engaged Nov 2005... Left voluntarily June 5, 2005...

We are since married. and now i have a son..My son is a USC, so is my hubby.

I have an interview for my K3 in a month.....

What will happen?

1. Will i get a visa?

2. Does a 601 apply to me......

Scared ... and very worried ..

Please counsel..

Zia80

[Pinkpig]

How long were you out of status or illegally present in the US?

If you were here illegally over 6 months but less than 1 year you will have the 3 year ban which will expire on June 6 2008.

If you were illegally present in the US for more than 1 year, you will have the 10 year ban which can be overcome with the I-601 waiver. If this is the case you will be denied your visa at your interview and you will be allowed to file the I-601 waiver.

This is not a legal opinion. I am not a lawyer.

[Laura]

It depends on how long you were officially out of status. Like Pinkpig said, you will need the waiver if it was more than 180 days, as three years has just about passed since you left.

What country are you filing from?

[Zia80]

OK, here's the tricky part....

the School official said my student file was terminated Nov 24, 2004. He found out, and then informed me December 30, 2004.... His error.. i have a letter from him ...

I sent out forms to chande/extend status and help get reinstated ... December 31. Correspondence continued till June 16 2005.... By then I had met my now hubby... I stayed in the US till June 6, 2006 then left voluntarily. My hubby and I didnt know any better, didnt even know about this site and now.. we're in a soup!

So , If they consider Nov24, 2004 to June 6, 2006 .. then more than 180 days ...

But , I understand that while I was appealing It was ok for me to stay in the US.. So from when I last heard from INS.. June 16, 2005 to June 6, 2006 ....is LESS THAN ONE YEAR ... right??

Isn't that possible? This is where I really want some clarity ...

I am filing from India..

[Laura]

Wow, this is such a crappy situation. Why did you leave the U.S.? You could have married and adjusted status - the overstay would have been forgiven.

Hmmm... I doubt that correspondence makes your visa valid but I really don't know. You probably should consult with Laurel Scott or another experienced immigration attorney. I am guessing that your overstay goes from Dec 30, 2004 until June 6, 2006, but that's just my guess.

There are a few people around in the I-601 Asia area that have gotten waivers approved through New Delhi.

[Pinkpig]

OK, here's the tricky part....

the School official said my student file was terminated Nov 24, 2004. He found out, and then informed me December 30, 2004.... His error.. i have a letter from him ...

I sent out forms to chande/extend status and help get reinstated ... December 31. Correspondence continued till June 16 2005.... By then I had met my now hubby... I stayed in the US till June 6, 2006 then left voluntarily. My hubby and I didnt know any better, didnt even know about this site and now.. we're in a soup!

So , If they consider Nov24, 2004 to June 6, 2006 .. then more than 180 days ...

But , I understand that while I was appealing It was ok for me to stay in the US.. So from when I last heard from INS.. June 16, 2005 to June 6, 2006 ....is LESS THAN ONE YEAR ... right??

Isn't that possible? This is where I really want some clarity ...

I am filing from India..


Zia80, There is no way for us to determine what the CO is going to find when you go for your interview. Was your student visa for d/s duration of status?

It won't matter that you did not know the laws on the immigration issues and the bars etc.

I suggest you put all of your paperwork in front of Laurel Scott and pay the $150 fee for a consult. She will tell you what your options are based upon the facts of your paperwork that the consulate officer will see.

Of course we can put dates together but it won't matter what we think. What matters is what the CO thinks. The CO will decide what you are eligible for/charged with.

I am sorry that I cannot give you a better answer. You can what if for years, but the best thing to do is to get the issue clarified and then you will know how to procede based on facts, not supposition. Good Luck.

[Zia80]

Yup my i-94 said D/s Duration of Status.

[Pinkpig]

Yup my i-94 said D/s Duration of Status.

Well, that is good. So while you were in student status, you were fine. You just need to determine when your official student status stopped. It will not matter if no one told you or lied to you or anything else. Immigration does not take into account that you did not know or someone advised you wrong or your lawyer screwed up or anything else. They go by their facts and it does not matter what you knew or did not know. When you left the country, you triggered whatever bar they are going to charge you with. You will need someone (an immigration lawyer who knows that they are doing) to review your paperwork and determine when you were out of status/illegally present. I think you already know all of this. We cannot determine exactly when immigration will charge you with being out of status and/or illegally present. These are all very precise determinations. You cannot really know for sure until the OC determines and gives you the ruling. At that time you have no appeal on it. So for sure you need the best attorney you can get to give you the correct answer. I still recommend that you let Laurel Scott take a look at your paperwork and give you her best interpretation. That is the best place for you to go next.

[emt103c]

With duration of status, you were out of status as soon as an immigration official made the determination. Whatever date that USCIS or a judge figured it out, not the date that the school figured it out. It sounds like USCIS told you that you were out of status in Dec. 2004, is that correct? This is from the Albright memo: http://www.shusterman.com/barmemo.html

A . Duration of Status Cases: Although most nonimmigrants are admitted for a specified period of time, students, exchange visitors, information media representatives ("I" visa holders), and holders of certain diplomatic visas are usually admitted for "duration of status" (D/S). An alien admitted for "duration of status" will begin to accrue unlawful presence only if either:

* an Immigration Judge (IJ) finds the alien has violated status and is excludable/deportable/removable, or

* the INS, in the course of adjudicating an application for a benefit (e.g., extension of stay or change or adjustment of status), determines that a status violation has occurred.

[Zia80]

God, I just re-read all the correspondence from INS from my request to extend status, be reinstated and all that horror...

I submitted a letter from my Designated School Official stating that my SEVIS file was terminated due to his error.. INS still didnt see how that caused me to fall out of status.. hello....

On my letter it states that my SEVIS file was terminated
November 22, 2004.

My question.... While I was waiting to hear from INS on my EOS and appealed the decision .. was i still piling on the unlawful presence?
My k3 appointment is July 7 in Mumbai ? Should i prepare the 601 already?

[Pinkpig]

http://www.americanlaw.com/exclud9A.html

I think you will find your answer here if you read the entire memo.

[Zia80]

Thank you for the link.

Is there some way to check what ins has on file for an immigrant?

also on my DS-156 for my appointment July 7 I have answered "yes" on the " have you overstayed on a previous visa"....Should i carry my appeal papers from when my DSO messed up, and will the consular give me a chance to explain ? Can that help get a decision in my favor?

Will he then decide about my visa.. or is it a given that if i overstayed...10 yr bar is a must? i have a month old son in India with me. we just got his American passport....i will take him for my interview too.

My hubby and i filed an I-130 and i-129F.. when the i-129F got sent to India and not the 130 we enquired with the California Service Center through our local Senator's office and were informed that the 130 was held back for processing in the US and so far CSC has no record of any unlawful presence... Is that good? what does that mean? who maintains records of "bad" immigrants....

One last thing.. what if there is any unauthorised employment? are you ineligible for the waiver?
Please please help...

[Adriane]

The bar/ ban is not discretionary- if you are found to have overstayed, then yes, you will definitely be banned and need to file the waiver.

Approval of the waiver is discretionary.

[Zia80]

so do i not say i overstayed on my ds-156.....

what do you make of the rest of my case?