Legal Question in Immigration Law in California

Well, you say you have been out-of-status for 5 years, but "D/S" on a student visa means "duration of status", which really means in plain language: "good for the duration of your status as a student pursuing your course of studies." So, if you have taken that long to complete the degree or program that was planned when you applied for the F-1 visa, then you would not be out-of-status. But assuming that you have overstayed, when you apply for a tourist visa in the future, the consulate will question you regarding the departure date from the U.S., and then it will come out that you did not complete your study program, or if you did, that you remained in the U.S. for longer than necessary. Yes, you will be subjected to the 10-year bar if the period of overstay was a year or more. A waiver for nonimmigrant visas would have to applied for then, and that is completely within the discretion of the consulate officer.

Larry L. Doan

www.GuruImmigration.com

http://guruimmigration.wordpress.com (blog)

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D/S stands for "duration of status", which is given to all F-1 students upon entry. If you are no longer enrolled in the school, or have completed your degree program, then you are no longer in valid nonimmigrant status. If it has been more than 1 year since you completed your studies, or are no longer going to the school, then once you leave the U.S., you would be subject to the 10 year bar, prohibiting you from re-entering the U.S. for 10 years since you last left. If you would like to return to the U.S., you would need to apply for a visa, and also a waiver to overcome that 10-year bar. Your circumstances to obtain such a waiver should be "extraordinary". It would be in the discretion of the consular officer reviewing your case to determine whether or not s/he would grant such a waiver.

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As a D/S entrant, the 10 year bar to admissibility does not apply based on US Immigration Service interpretation. That's because the D/S is not considered to be a time beyond that which is permitted by the Attorney General. If your status ended on a particular date, then the unlawful presence bar would apply and to enter, you'd need a waiver.

However, that doesn't mean you will have no trouble entering the U.S. In fact, you could have difficulty. While not barred by unlawful presence, you have violated your status by remaining beyond the time on your I-20. As a result, it will be a matter of discretion as to whether a Consular Officer will issue a visa or Customs and Border Protection will allow you to enter the U.S. This will be based on a documentation history of why you remained longer and/or very strong proof of ties to show you'd return abroad after a temporary entry to the U.S. The alternative would be qualifying for an immigrant visa, in which case, overstaying in the way you did would not be an issue.

For more information, feel free to visit me at http://www.yardum-hunter.com, write me at [email protected] or call me at 818 609 1953.

Sincerely,

Alice M. Yardum-Hunter, Attorney at Law

Certified Specialist, Immigration & Nationality Law, State Bar of CA

2nd VP, LA County Bar Assn., Immigration Section

A "Super Lawyer" 2004-2009