F1 Out of status and 485! Advice Please!

E

e001327

Registered Users (C)
I am on F1 and have been out of status for TWO YEARS by ignorance, with D/S on I94, but the expeiration date on the I20 is wayway too old. And my wife and I are about to submit 485 based on her eb1. You can imagine how shocking it is.

Right now we don't know what to do, should we submit the 485 anyway, is it possible it will be approved, anything we need to prepare to do if the IO found out my out of status? or should I apply for H4 in or out of US before 485? what is the chance I will get the H4 approved? Or the worst case my 485 got denied, what can we do?

People with experience please do help me here! A recommendation of good lawyer on this kind of matter is also deeply appreciated!
 
An adjustment of status is not allowed if you are not in status on employment based petition. Filing a I-485 will initiate deportation proceedings.
Overstay is only forgiven On family based petitions as a IR of a USC only.
It seems like you will face a 10 year bar to recieve any US visa once you leave US because of your overstay. Once 10 years have passed after you leave US at that point you will be able to apply for immigrant or a non immigrant visa.
 
If you file the I-485 without doing anything about your status, a quick check with the SEVIS system or the university will show that you are out of status, and your I-485 will be denied and you'll probably be deported soon after.

You can't switch to H4 within the US because you're out of status. You'll need to leave the US and reenter with a new status before you can file I-485 based on your wife's EB1 (if your wife had US citizenship you wouldn't need to leave -- but she's years away from that).

What could save you is that you had F-1 with D/S. So that means when you go out of status, you don't begin to accumulate unlawful presence immediately. With D/S, you only become unlawfully present when USCIS or an immigration judge makes official determination of your unlawful presence. If they do that, they're supposed to notify you, so if you haven't received any such notification chances are you haven't been found to be unlawfully present (yet). Unless you've moved since you had F-1 status and they sent the notification to your old address.

Unlawful presence determines whether you'll be subject to the 3-year or 10-year ban or not banned from the US. 180 days of unlawful presence -> 3 years; 365 days -> 10 year ban. But if you have less than 180 days of unlawful presence, you could leave the US, get an H4 visa at the consulate (or H4 stamp at the border, if you're Canadian), and return to the US and then file I-485.

Even if they give you a problem because of the out of status period, as long as you have less than 180 days of unlawful presence you'll still be able to get an immigrant visa through the consulate by having your wife file I-824 follow-to-join for you after her green card is approved.

Did you attend the university for which you got the F-1? For how long? If you didn't attend for at least one semester, you could have other problems.
 
Hi Jackolantern,

THANK YOU so much for your advice. We have been desperately seeking for answers these two days.

Unfortunately I am not sure whether USCIS sent me a notice or not because I didn't update the address with the school( I know,another worst thing I have done) but I at least haven't received anything from the school by forward service. So what if I had unlawful presented for more than 180 or 365 days, will I be still eligible to apply for H4 aboard? And if I have a valid H4 visa, will there still be a problem when entering US? Same questions to couselar processing.

I have attended the school for at least a semester. But what is the normal procedure the school treats this kind of situation? Should they sent a notice me before they do anything to my I20? how soon will they terminate the I20? and will the USCIS be automatically notifed? and how soon will they take action? We are so nervous now and will talk to the school first thing next Monday.

Thanks again to Jackolantern and other for your help. Your answer really helps us calm down and see some light out of dark. God bless you!

If you have similar experienece or know someone has expertise on this , please also help!


Jackolantern said:
If you file the I-485 without doing anything about your status, a quick check with the SEVIS system or the university will show that you are out of status, and your I-485 will be denied and you'll probably be deported soon after.

You can't switch to H4 within the US because you're out of status. You'll need to leave the US and reenter with a new status before you can file I-485 based on your wife's EB1 (if your wife had US citizenship you wouldn't need to leave -- but she's years away from that).

What could save you is that you had F-1 with D/S. So that means when you go out of status, you don't begin to accumulate unlawful presence immediately. With D/S, you only become unlawfully present when USCIS or an immigration judge makes official determination of your unlawful presence. If they do that, they're supposed to notify you, so if you haven't received any such notification chances are you haven't been found to be unlawfully present (yet). Unless you've moved since you had F-1 status and they sent the notification to your old address.

Unlawful presence determines whether you'll be subject to the 3-year or 10-year ban or not banned from the US. 180 days of unlawful presence -> 3 years; 365 days -> 10 year ban. But if you have less than 180 days of unlawful presence, you could leave the US, get an H4 visa at the consulate (or H4 stamp at the border, if you're Canadian), and return to the US and then file I-485.

Even if they give you a problem because of the out of status period, as long as you have less than 180 days of unlawful presence you'll still be able to get an immigrant visa through the consulate by having your wife file I-824 follow-to-join for you after her green card is approved.

Did you attend the university for which you got the F-1? For how long? If you didn't attend for at least one semester, you could have other problems.
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Unfortunately I am not sure whether USCIS sent me a notice or not because I didn't update the address with the school
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After moving, did you file AR-11 with USCIS?

So what if I had unlawful presented for more than 180 or 365 days, will I be still eligible to apply for H4 aboard? And if I have a valid H4 visa, will there still be a problem when entering US?
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More than 180 or 365 days of unlawful presence means you won't be granted any kind of visa at the consulate until you wait out the 3 years or 10 years. But if you have less than 180 days you should be able to obtain an H4 abroad and return to the US.

We are so nervous now and will talk to the school first thing next Monday.
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If you do that, that could result in them sending an alert to USCIS, leading to your deportation soon after.

I think you just have to take a chance and leave the US ASAP and apply for your H4 before your wife files her I-485. Applying for your H4 before she files I-485 is important because EB1 I-485's can be approved very fast sometimes, and once hers is approved you'll lose eligibility for H4.
 
After moving, did you file AR-11 with USCIS?
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No, is it good or bad?

More than 180 or 365 days of unlawful presence means you won't be granted any kind of visa at the consulate until you wait out the 3 years or 10 years. But if you have less than 180 days you should be able to obtain an H4 abroad and return to the US.
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If you do that, that could result in them sending an alert to USCIS, leading to your deportation soon after.
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But is it too dangerous leaving US without knowing what the situation is? Does deportation mean the ban? or means they find out and start to count the day of " unlawful presence" and ask you to leave?

I think you just have to take a chance and leave the US ASAP and apply for your H4 before your wife files her I-485. Applying for your H4 before she files I-485 is important because EB1 I-485's can be approved very fast sometimes, and once hers is approved you'll lose eligibility for H4.
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I am so grateful that you bring this up, we original thought only submitting my wife's 485 should be fine. Seems the timing is very important. Can't thank you more!
 
e001327 said:
No, is it good or bad?
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It's not good. If you filed the AR-11 they would have been more likely to have your latest address on file, so you could receive notifications from them. Filing AR-11 is required whenever a noncitizen changes address.

But is it too dangerous leaving US without knowing what the situation is?
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We don't know whether you have unlawful presence or how much, but you are definitely out of status and not eligible to file I-485 without exiting the US and coming back with a fresh status. It's more dangerous if you stay in the US -- the longer you stay is the more unlawful presence you accumulate (if you've started accumulating it) and the greater the chance of getting arrested and facing deportation.

Does deportation mean the ban?
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If deported, you will be banned for a while, unlawful presence or not. But if they put you in removal proceedings and the judge grants you voluntary departure, and you leave by the given deadline, you won't face a ban if you have less than 180 days of unlawful presence. However, if you have less than 180 days of unlawful presence, you can go abroad and get an H4 and return -- so don't wait for them to put you in removal proceedings where there is a danger of being deported (and being locked up in a detention center for weeks or months while waiting for deportation).
 
I think you should consult a lawyer on this scenrio.Good thing is that applying on EB1 means things are current and the case will move very rapidly.I heard a lot of well documented EB1 cases got aproved with 6-9 months time frame in the last 2 years.The bad things is that you might have to go back to your home country and apply for H-4 .

Best of luck in geting through
 
jackolantern and harry11

Thank you people so much! I need to prepare for leaving and applying H4 very soon.
I am also consulting with some lawyers.

I will try to update in this post if any progress or situation.
 
If deported, you will be banned for a while, unlawful presence or not. But if they put you in removal proceedings and the judge grants you voluntary departure, and you leave by the given deadline, you won't face a ban if you have less than 180 days of unlawful presence. However, if you have less than 180 days of unlawful presence, you can go abroad and get an H4 and return -- so don't wait for them to put you in removal proceedings where there is a danger of being deported (and being locked up in a detention center for weeks or months while waiting for deportation)
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To jackolantern

I have one more question, you know I have to be very cautious. I wonder what could be the possibly reason for deportation in my case? If i understand correctly, the "unlawful presence" only starts to count until a USCIS officer or a judge says so, assume I haven't started the counting, they can still deport me due to the out-of-status? what's the regulation about it?

Thanks for answering!
 
e001327 said:
I have one more question, you know I have to be very cautious. I wonder what could be the possibly reason for deportation in my case? If i understand correctly, the "unlawful presence" only starts to count until a USCIS officer or a judge says so, assume I haven't started the counting, they can still deport me due to the out-of-status? what's the regulation about it?
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When you are out of status, you are deportable whether you have unlawful presence or not. And once deported, it is standard to be banned for at least 5 years. The unlawful presence is what determines whether the automatic 3-year or 10-year bans apply. With deportation, the judge can impose a ban longer than that, but not less than the amount determined by your unlawful presence.
 
The school says my status is " completed', this means I am not banned yet, right?

what are the chances the H4 visa will be approved with F1 out-of-status history? do i have explain what exactly happened?

Thanks for your precious advice!
 
The school says my status is " completed', this means I am not banned yet, right?
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No, we cannot draw any meaning from that as far as unlawful presence is concerned.


It is possible they'll deny your H4 visa because of your overstay. Although not very likely if you don't have unlawful presence.

However, if that happens, you'll still be able to reenter the US after your wife's GC is approved, if you have less than 180 days of unlawful presence. After GC approval, she would file I-824 for your follow-to-join, and a few months later you'll interview for an immigrant visa at the consulate. If you have less than 180 days of unlawful presence, the immigrant visa will not be denied because of your overstay.

There are no risk-free options for you. No matter what, you risk being deported or stuck outside the US for a short while or long while. Trying for the H4 is risky, but other options are riskier.
 
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Back to US!

I want to thank JackoLantern and all the other people helped me during my darkest day. And I'd like to share my story here so people having the same problem in the future can find some useful information here, most importantly, people can learn to avoid the same problem from my lesson.

As suggested, I went back to home country and applied for H4 visa. there seemed to be no problem with my information in the system and I was not asked by the VO for anything related to my previous F1 experience and only my wife's employment info was requested. And then VO said it needed some administrative processing for my visa and took my wife's CV and mine. Three weeks later, I got my passport back, the visa is approved, but they mistakenly printed H1B instead of H4, then it took me another week to have it corrected.

I entered US through LAX airport without any trouble, the date on I94 is the same as my wife's I797.

I am so grateful I can come back. one month ago the life was like nightmare. I have submitted my I485. I hope like some of you guys said, my I485 will go smoothly since I have reentered US with a new visa and a new I94.

THanks again for all the help! and My biggest advice: never be out of status!
 
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