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Am I Subject to 10 year Ban?
- Thread starter odilorg
- Start date
cafeconleche
Registered Users (C)
Definitely.
I came to USA in 1998 on J-1 Visa with I-94 stamped D/S no specific date. Then I have spent 6 years illegally came back home in 2008. So I wonder Am I subject to 10 year ban?
Nope, you do not have a ban. You did not violate the date on your I-94, since there was no date.
People admitted for D/S cannot start to accrue unlawful presence, unless they were ruled against by an immigration judge, or were denied some benefit from USCIS. Since you had no unlawful presence, you have no ban.
Yes, you are.
This is wrong.Definitely.
When he stayed beyond 30 days after the completion date of his DS-2019, he was in violation of his status. Either the DOS or the DHS can reject him because he is required to disclose his previous stay in USA truthfully when he applies for a visa. If he is being truthful then they will discover his DS-2019 and his status violation, resulting in bar and denial. If he lies and somehow he gets a visa, the CBP will likely find out at the airport and put him on expedited removal.Nope, you do not have a ban. You did not violate the date on your I-94, since there was no date.
People admitted for D/S cannot start to accrue unlawful presence, unless they were ruled against by an immigration judge, or were denied some benefit from USCIS. Since you had no unlawful presence, you have no ban.
This is wrong.
But I guess if he has some spare money he can test it and see.
When he stayed beyond 30 days after the completion date of his DS-2019, he was in violation of his status. Either the DOS or the DHS can reject him because he is required to disclose his previous stay in USA truthfully when he applies for a visa. If he is being truthful then they will discover his DS-2019 and his status violation, resulting in bar and denial. If he lies and somehow he gets a visa, the CBP will likely find out at the airport and put him on expedited removal.
But I guess if he has some spare money he can test it and see.
His question specifically asked about whether he has the 10-year ban (from 212(a)(9)(B)). I answered the question.
I did not say he will be granted any visa. But if he is denied for a visa, it will be for some reason that is not the ban.
You indeed answered the specific question, but it does him no favor if he thinks he has no bar then spends a couple hundred dollars on visa fee just to be denied. Worse, he could luck out on the visa only to be turned away by the CBP.His question specifically asked about whether he has the 10-year ban (from 212(a)(9)(B)). I answered the question.
I did not say he will be granted any visa. But if he is denied for a visa, it will be for some reason that is not the ban.
An immigration judge is not the only one who can rule on status violation, DHS most certainly can. It's hard to believe that a consular officer has no power of finding him as an overstay and apply the bar.
If he doesn't care about getting another visa, then the bar doesn't matter.
cafeconleche
Registered Users (C)
I stand corrected.
You indeed answered the specific question, but it does him no favor if he thinks he has no bar then spends a couple hundred dollars on visa fee just to be denied. Worse, he could luck out on the visa only to be turned away by the CBP.
An immigration judge is not the only one who can rule on status violation, DHS most certainly can. It's hard to believe that a consular officer has no power of finding him as an overstay and apply the bar.
If he doesn't care about getting another visa, then the bar doesn't matter.
Someone cannot "apply the bar". The ban is caused by an accumulation of a certain amount of time of "unlawful presence". For people admitted on D/S, "unlawful presence" does not even START accumulating until an immigration judge rules or USCIS denies some benefit, when he is still in the United States. It is not retroactive. If neither of these things happened to him when he was in the U.S., he had zero time of "unlawful presence", so there is no 3-year or 10-year ban.
If he applies for a tourist visa or something, he may well be denied due to having been out of status because those visas require proof that the holder will return. But for some types of visas, like family-based immigrant visas, past out of status without a ban is probably not going to affect the issuance of the visa.
In my opinion an immigrant visa is the most likely to trigger the bar, because it is an instance where he is seeking an immigration benefit from the CIS (instead of from the Department of State). The petition has to be filed by a sponsor in USA, so this is the moment when the CIS will find him in violation of his status for staying beyond 30 days of his DS-2019 completion date.Someone cannot "apply the bar". The ban is caused by an accumulation of a certain amount of time of "unlawful presence". For people admitted on D/S, "unlawful presence" does not even START accumulating until an immigration judge rules or USCIS denies some benefit, when he is still in the United States. It is not retroactive. If neither of these things happened to him when he was in the U.S., he had zero time of "unlawful presence", so there is no 3-year or 10-year ban.
If he applies for a tourist visa or something, he may well be denied due to having been out of status because those visas require proof that the holder will return. But for some types of visas, like family-based immigrant visas, past out of status without a ban is probably not going to affect the issuance of the visa.
cafeconleche
Registered Users (C)
Maybe, if the OP left the US on foot to Mexico or Canada, his/her exit wasn't recorded and could be in the clear.
Without an exit record I believe they will assume the worst and use some date prior to his showing up at the consulate as exit date. It is up to him to prove them wrong.Maybe, if the OP left the US on foot to Mexico or Canada, his/her exit wasn't recorded and could be in the clear.
In my opinion an immigrant visa is the most likely to trigger the bar, because it is an instance where he is seeking an immigration benefit from the CIS (instead of from the Department of State). The petition has to be filed by a sponsor in USA, so this is the moment when the CIS will find him in violation of his status for staying beyond 30 days of his DS-2019 completion date.
He is not in the U.S. Them finding him in violation now doesn't matter.
Let me describe what it takes for him to have a 3-year or 10-year ban. He becomes out of status for any number of years, doesn't matter. He has no unlawful presence. Suppose they put him in removal. After the entire process, once the final ruling from the immigration judge is made, only then does the clock on unlawful presence start. If he stays 180 days in the U.S. after that and leaves, he has a 3 year ban. If he stays more than 1 year after that and leaves, he has a 10 year ban.
Alternately, say while he is in the U.S. and he applies to USCIS for some kind of change of status or something. They find him ineligible. Again, only then does the clock on unlawful presence start. If he stays 180 days in the U.S. after that and leaves, he has a 3 year ban. If he stays more than 1 year after that and leaves, he has a 10 year ban.
If neither of these things happened while he is in the U.S., he never had any unlawful presence. What happens after he leaves the U.S. doesn't matter. Even if one of these things (which are very unlikely) happened while he was in the U.S., it does not automatically mean he has a ban. He has to have accumulated more than 180 days / 1 year of unlawful presence after these things happened for the respective ban to occur.