How do I know if I was ever out of status?

G

granitestone

Registered Users (C)
I planned to travel using my AP.
My H1B expired. I have iEAD.

According to my lawyer, one should
not use AP if he/she was out
of status before. This is because
custom/BCIS can bar one from
entering!!!

1) How do I know if I was ever out
of status ?

2) How do custom know? Do they
go back like years and years
and dig up all the record ?

3) If I have taken a break of few weeks
btw jobs when I was on H1B. Was
I out of status. At that time, one
employer H1b is pending, another
is still valid. That was before AC21
signed by Clinton on Oct18, 2000.

Appreciate any help available.
Thanks
 
granitestone,

generally, out-of-status condition appears when one overstays his/her I-94 or violates conditions of current status. Now, overstaying I-94 is permitted under these circumstances (permitted = overstay time will not be counter towards unlawful presence):

a) EOS (extension of stay) application was timely filed (timely = before I-94 has expired);
b) Visa renewal (if applicable) application with EOS (extension of status) application were timely filed;
c) COS (change of status) application was timely filed;
d) AOS (adjustment of status) application is pending.

There is a little controversy about overstaying an I-94 obtained through use of Advance Parole document. But, at this time it is permissible to assume that a such overstay will not be counted towards unlawful presence as well.

Violation of conditions of current status is pretty simple. Each status is associated with terms and conditions. For example, B-1 status implies that you can stay in the States as long as your I-94 is valid and you are not filing for immigration and not engaging in unauthorized employment.

As for your particular situation, I can give you a few pointers. They are just pointers, not a legal advice. If your lawyer says that you should not travel because you may be subjected to 3- or 10-year re-entry bar, you should believe him/her, because s/he knows details of your case.

a) Travel is unadvisable for people who accumulated 180 or more days of unlawful presence. If the said time is between 180 and 365 days, then the 3-year re-entry bar applies. If the said time is more than 365 days, then the 10-year bar applies. However, any unlawful presence is not good. Besides, you should realize that only one document actually can guarantee admission to the States and it is a USC Passport.
b) In regard of your "break of few weeks" between H-1B jobs. Well, technically, you were out of status as soon as your first H-1B job was terminated. Whenever an H-1B employee is terminated, s/he is required to leave the country immediately, or begin accrue unlawful presence. Your new H-1B, however, should have come without I-94 and you should have left the country and re-entered using the new visa.

On the other hand, you should review your H-1B out-of-status situation in historical perspective. In pre-2000 days, INS had different views on when a terminated H-1B employee begun accruing unlawful presence. I believe, they had 30-day "cushion" period at the time.

***

How do they know?

Hmm... not sure, but I suspect that they use a computer connected to a database. ;)

Seriously, every time you surrender your I-94 when leaving the country, it is being forwarded to INS and they enter it to their database along with the date it was surrendered. That is how they can detect overstay. That is why it is very important to surrender all I-94's one has accumulated while being here.

As for H-1B employee termination, every employer is required by law to inform INS when it has happened, identifying the effective date of H-1B visa (and status) termination. Again, they enter this information to their database.

So, as it turns out, the procedure is pretty simple. And they will know.
 
Actually.... I don't think they know when you leave....


http://www.washingtonpost.com/wp-dy...-2003Sep28.html
http://www.washingtonpost.com/wp-dy...003Sep28_2.html

"Because immigration officials do not now record departures, they have no way of knowing how many people have overstayed their visas. In the past year alone, the State Department issued 5 million visas to foreigners for short visits. The program would plug that information gap by monitoring for the first time when people leave the country, ..."
 
Good post BitterMan! Very useful!

CuriousGeorge,

Your I-94 is indication of when you left the country. You cannot leave without giving it up to the airline which collects it for the INS. Though they may not have the software in place for speedy access, but I am sure they can damn well track you down if they want too.
 
To counter the article in Washington Post (a reputable newspaper, although some reporters can make it look bad, if you know what I mean), I present to you the following link:

http://www.usdoj.gov/oig/au0118/intro.htm

This article from USDOJ discusses an automated I-94 system, but we are primarily interested in the following paragraph:

The manual form process works as follows. During airline check-in at a foreign port of departure or during the flight, most non-U.S. citizens receive one of the I-94 forms that they are required to fill out during the flight. Upon arrival in the United States, the passenger surrenders the completed form to an INS inspector. After completion of the inspection process, the inspector detaches the "departure record" portion of the form and returns it to the passenger. The inspector retains the "arrival record" portion of the form. The INS sends the arrival records to a contractor who keys in the data and creates an input tape for the Nonimmigrant Information System (NIIS). When passengers depart the United States, the airlines collect the departure records and provide those records to INS inspectors at the port of entry. The INS also sends the departure record to a contractor for data entry and the creation of an input tape. Another contractor uploads the data on the input tapes into NIIS. The data is supposed to be matched within NIIS to identify overstays.
Click to expand...

Then the article is proceeding to make a statement that this manual process is error-prone and some individuals were identified as overstayed although they left the States before their I-94 expiration. I believe it proves my point.
 
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