Immigration issues before going back for DV visa interview

[Luckguy]

Hi folks here,

I have received the email from KCC that my interview date has been scheduled on 05/18/2012 in the consulate of my home country, my case number is 2012AS000329xx. I need some suggestions or advice from any people on this forum for my current immigration issues in USA before I fly back to my home country. i would appreciate your ideas and inputs. The following is the story of my situation.

I came to USA in 07/2007 as the F-1 student and I have a F-1 visa stamp on my passport valid for 5 years (from 06/27/07 to 06/26/12). My wife is also a F-1 student in USA.
I finished my master's degree on 05/2010 ,then I applied for EAD card as the F-1 OPT (valid from 09/27/10 to 09/26/11), and worked from 10/2010 to 07/2011. My wife is still a F-1 student.
I knew I was one of the winners of DV-lottery of 2012 on 07/18/11, and sent all of the required documents back to KCC on 08/11.
I got an investment opportunity on a new restaurant project with my partner, in the meanwhile, I filed to petition for E-2 status (treaty investor) on 08/15/2011 at USCIS.
However, my partner was short of funding during the construction process and caused the progress delayed, that also caused my E-2 petition was firstly denied at USCIS on 12/2011 because of the construction progress. My lawyer filed the MTR (motion to re-open) the E-2 for me on 01/10/2012. In the meanwhile, the lawyer also filed the F-2 for change of status for me on 01/05/2012, Unfortunately, I got the 2nd denial letter for E-2 on 03/09/12 again, and I also got denial letter for F-2 on 03/12/12 because of the late filing to USCIS (My lawyer did submit the E-2 petition letter explaining I have a E-2 case pending, but USCIS just ignored that and said my F-1 expired on 11/26/11)
Both letters said I need to immediately depart the USA if the date on my I-94 form is expired, and I have 30 days to file MTR if I disagree with the denial decision. My lawyer told me since I came here as F-1 student and there is a D/S (duration of stay) stamp on my I-94, there is no exact date I have to depart the USA. He also does not think it is necessary to file the MTR for E-2 or F-2 again. He suggested me just go back to my home country for the DV-lottery interview.
The earliest flight I can book is 05/07/12 because my wife has the final exam on 05/04/12. By the way, I also need to reschedule the interview date with the consulate as well.

My question will be if that is OK I can stay until 05/07/12? or better to file the MTR again for E-2 or F-2 to keep my case pending with USCIS?
I really worry about if the consular officers ask about my current immigration status in USA (I do not know if they do ask), and I need to show all of the receipts and letters from USCIS and explain a lot.
I know there is something like 3 years of ban and 10 years of ban if you illegally stay in USA for some time. I do not want to take any risk of that violation and affect the decision of my visa interview at consulate.

I will consult with my lawyer again, but I would also appreciate some advice or idea from people here.

Thanks again for reading this thread.

 

[slash_dot]

Hi folks here,

I have received the email from KCC that my interview date has been scheduled on 05/18/2012 in the consulate of my home country, my case number is 2012AS000329xx. I need some suggestions or advice from any people on this forum for my current immigration issues in USA before I fly back to my home country. i would appreciate your ideas and inputs. The following is the story of my situation.

Let me try understand this.

At any point did you fall Out of Status?

You in the U.S. on a visa that is current at the moment. It is a non-immigrant F-1 student visa. You said the I-94 form that you have is stamped "D/S". As far as I know this is because you can legally stay in the U.S. as long you continue your course of studies and/or remain in your exchange program. The key date is 26 June 2012 when your existing F-1 visa runs out. In my opinion getting denied the E-2 visas is a red herring because ultimately your presence in the U.S. as far as I can discern is still your F-1 status.

That would mean the important date is still the original 06/26/12, unless you have successfully got your Diversity IV by this date you must be outside the United States. Being in the U.S. without a new visa would mean being Out of Status, which would be a terrible thing to happen going into a Diversity Visa interview.

If I understood everything correctly, your lawyer sounds right. He is right because getting a diversity visa would mean you would be a LPR, making a F-2/E-2 visa superfluous and unnecessary.
Attending a Diversity Interview and getting denied would make a F-2 / E-2 visa pointless too, because you would have shown Immigrant Intent (F-2 and E-2 being non-immigrant visas), and filing for them a waste of time.

If I’ve misunderstood anything, or if I got anything wrong, I hope other members of the forum will assist me (and you!) in solving the issue.

Edit: I re-read your post again, and this concerned me:

USCIS just ignored that and said my F-1 expired on 11/26/11

It is concerning that USCIS consider your F-1 status to have expired, what did your lawyer say about this? Why would they consider the F-1 expired if the original expiry date set was 06/26/12?

 

[Luckguy]

Hi slash_dot,

Firstly, I appreciate your response.

The denial letter of F-2 (change of status) from USCIS said my EAD card expires on 09/26/2011, plus the grace of period (60 days) that would be 11/26/2011. That is when my F-1 status expired. But my filing date for F-2 was on 01/05/2012, that is too late.
But I had filed the E-2 petition and the case was pending with USCIS (filed E-2 on 08/15/2011), until I got the first denial notice on 12/18/2011. That first E-2 denial letter also said I have 30 days to file the MTR (which means I have to file MTR before 01/18/2012). The lawyer filed the MTR for my E-2 on 01/10/2012 (the date on my I-290B receipt), and also the lawyer filed to petition for F-2 status on 01/05/2012 (the date on I-539 receipt).
The denial letter for F-2 does not mention anything about the E-2 petition which my lawyer did submit the receipt of E-2 petition (but no receipt of MTR for E-2). My lawyer guessed the reason is because my E-2 petition was denied on 12/18/2011, and we filed the MTR later than F-2 (Again, F-2 on 01/05/2012, MTR for E-2 on 01/10/2012).
However, the biggest question is that the lawyer did submit the receipt of my E-2 petition with a cover letter, and I believe I am still legally present here even in that 30 days after 12/18/2011(the first denial date of E-2). That denial letter for F-2 does not mention anything about my E-2 and just said the late filing on 01/05/2012 due to my F-1 OPT expired on 11/26/2011, and gave me 30 days to file the MTR.
By the way, the office dealing with my E-2 is California center, the office for my F-2 is Vermont center. I believe there would be a misunderstanding even though the computer system are connected nationwide.
I know this is the way how USCIS make money from all of the foreigners who try to stay here legally.

My concern is, is that really necessary and better to file the MTR for F-2 or E-2 (I think E-2 is very less likely since our restaurant project is stuck there) to keep my status.

I know it is a bit complicated but hope you could understand the situation. Thanks again!

 

[Luckguy]

Hi slash_dot,

Firstly, let me clarify your concern about the VISA and immigration Status. So The E-2 and F-2 here are immigration status, not Visa
the F-1 visa stamp on my passport is only the visa I got in the consulate of my home country in 2007, and it is valid for 5 years until 06/26/2012.
But my completion date on the I-20 is 05/2010. My F1-OPT EAD card expired on 09/26/2011. Plus that grace period of 60 days that would be 11/26/2011.
So that is why USCIS stated my F-1 status expired on 11/26/2011

As for the question, am I out of status? the key point will be that 30 days after the denial date to file the MTR. Am I still in status in that 30 days?

 

[BigJoe5]

Hi folks here,

I have received the email from KCC that my interview date has been scheduled on 05/18/2012 in the consulate of my home country, my case number is 2012AS000329xx. I need some suggestions or advice from any people on this forum for my current immigration issues in USA before I fly back to my home country. i would appreciate your ideas and inputs. The following is the story of my situation.

I came to USA in 07/2007 as the F-1 student and I have a F-1 visa stamp on my passport valid for 5 years (from 06/27/07 to 06/26/12). My wife is also a F-1 student in USA.
I finished my master's degree on 05/2010 ,then I applied for EAD card as the F-1 OPT (valid from 09/27/10 to 09/26/11), and worked from 10/2010 to 07/2011. My wife is still a F-1 student.
I knew I was one of the winners of DV-lottery of 2012 on 07/18/11, and sent all of the required documents back to KCC on 08/11.
I got an investment opportunity on a new restaurant project with my partner, in the meanwhile, I filed to petition for E-2 status (treaty investor) on 08/15/2011 at USCIS.
However, my partner was short of funding during the construction process and caused the progress delayed, that also caused my E-2 petition was firstly denied at USCIS on 12/2011 because of the construction progress. My lawyer filed the MTR (motion to re-open) the E-2 for me on 01/10/2012. In the meanwhile, the lawyer also filed the F-2 for change of status for me on 01/05/2012, Unfortunately, I got the 2nd denial letter for E-2 on 03/09/12 again, and I also got denial letter for F-2 on 03/12/12 because of the late filing to USCIS (My lawyer did submit the E-2 petition letter explaining I have a E-2 case pending, but USCIS just ignored that and said my F-1 expired on 11/26/11)
Both letters said I need to immediately depart the USA if the date on my I-94 form is expired, and I have 30 days to file MTR if I disagree with the denial decision. My lawyer told me since I came here as F-1 student and there is a D/S (duration of stay) stamp on my I-94, there is no exact date I have to depart the USA. He also does not think it is necessary to file the MTR for E-2 or F-2 again. He suggested me just go back to my home country for the DV-lottery interview.
The earliest flight I can book is 05/07/12 because my wife has the final exam on 05/04/12. By the way, I also need to reschedule the interview date with the consulate as well.

My question will be if that is OK I can stay until 05/07/12? or better to file the MTR again for E-2 or F-2 to keep my case pending with USCIS?
I really worry about if the consular officers ask about my current immigration status in USA (I do not know if they do ask), and I need to show all of the receipts and letters from USCIS and explain a lot.
I know there is something like 3 years of ban and 10 years of ban if you illegally stay in USA for some time. I do not want to take any risk of that violation and affect the decision of my visa interview at consulate.

I will consult with my lawyer again, but I would also appreciate some advice or idea from people here.

Thanks again for reading this thread.

USCIS made a determination about the expiration of your status. You can flush the lawyer's comment about "D/S" because that's what it is.

Do NOT stay beyond 179 days from that date determined by USCIS. Do the math, check it twice and then get a second opinion. THEN levae before the resulting date.

 

[Luckguy]

Hi BigJoe5,
Thanks very much for the reply, I just have some key questions for you, hope you could give me some advice

1. Am I still in status in that 30 days after the denial date (the date on the denial letter), if so, I file the MTR in that 30 days, that means the case is pending and I am still in status, right?

2. The final denial date of my E-2 is 03/09/12, and the denial date for F-2 is 03/12/12. I already booked the flight and ready to depart the USA on 05/07/12, I know it is absolutely less than 180 days. Do you think it is better to file the MTR for F-2 before 04/12/12 or just stay until 05/07/12 and leave?

3.I am a DV-lottery winner, and ready to have my interview at the American consulate in my home country, do you think even I have one day of out-of-status, that would affect the decision of my interview?

Appreciate your response!

 

[real_picture]

Hi BigJoe5,
Thanks very much for the reply, I just have some key questions for you, hope you could give me some advice

1. Am I still in status in that 30 days after the denial date (the date on the denial letter), if so, I file the MTR in that 30 days, that means the case is pending and I am still in status, right?

2. The final denial date of my E-2 is 03/09/12, and the denial date for F-2 is 03/12/12. I already booked the flight and ready to depart the USA on 05/07/12, I know it is absolutely less than 180 days. Do you think it is better to file the MTR for F-2 before 04/12/12 or just stay until 05/07/12 and leave?

3.I am a DV-lottery winner, and ready to have my interview at the American consulate in my home country, do you think even I have one day of out-of-status, that would affect the decision of my interview?

Appreciate your response!

You may wish to speak to another lawyer to get a second opinion. Your situation is quite complex. At the end of the day, it's what USCIS say that really matters.

 

[makeiteasier]

I disagree with your lawyer on many fronts...

While I disagree with your lawyer on many fronts...I will leave that between the two of you. Duration of Status - the 'status' here means 'study/academic program' so as long as you are studying or enrolled in a matriculated program, you are serving your duration of Status. The visa dates here do not play much - but the maintenance of either legal status or lawful presence.

Also - please note that the 3 year and 10 year bar are triggered upon entry if you have accumulated 180 and 1 year of unlawful status.
Also note that in the next few months, there will be a new form I-601 which one can request for 'forgiveness' or waiver of unlawful presence WHILE FILING IN THE US

That said, here is my experience:
I graduated with my Masters 5/2010. Filed for OPT EAD...and was approved. Sept. 2010 - filed for R1/I485. Sept. 2011 - R1 and I485 were denied. To bridge the gap before fiscal year for DV2012 came in - I filed for I539 on line to keep me in lawful presence (though I would have been denied for immigrant intent) but as long as it was accepted as properly filed within 33 days from the date of previous denial, I knew I was fine. October 2011 - I filed for the DV I485 (though I will be current in May), and was rejected (for missing a signature) then resent the same package which was accepted. Went for biometrics, interview, and now waiting for my number to go current. I later received RFE for the I539 a week after I withdrew the application.

For $290 or thereabouts, you can file I539 as you look for a school. They will not need an I20 immediately. However, it will keep you in lawful presence. The issue of my legal status cam up during my interview and the IO who interviewed me was pretty harsh on that, but I was able to confidently prove to him that though he may think that I was out of status, I have maintained lawful presence through out the years hence eligible to adjust status.

Since you are not doing AOS, there is not much to stress about, except that lawyer of yours. You may need to ensure that within 33 days from the date of the notice that you have, (or 30 days if it says 30 days) that you file for something to keep you in lawful presence.

Being denied something by USCIS is NOT a big deal. It happens all the time and does not black list you or anything. I cannot personally count with one hand how many times I have been denied something...filed mtr - also denied; re-opened the original case etc and finally approved...here and there in my past 10 years here. I came in as a visitor mind you. As long as I did the right thing and I filed genuine filing, and was denied because of something out of my hands; it doesnt bother me an inch. I will still move on and file for something else, and indicate there where asked that i have been denied an application before. FYI - this I485 is my THIRD. If they had denied me..I was to file under something else, so what? As long as my kids are in this country and citizens by birth, I will file every single form to keep me raising them till they are older enough to process and understand things...so ONLY IN MY OPINION, I do not see a red flag in previous denials (nothing wrong you did to be denied...nothing at all, but it happens). One of the applications that I was denied has been under strict investigations, and i didnt know that because the category R1 was abused by religious workers. I was asked at interview why it was denied and i said things as they were because there was nothing wrong I had done for it to be denied. I did the right thing from the start to the end, and had nothing to be afraid of...but they had to deny because that was NOT the timing of the Lord for me to receive the GC, and God did not want me to receive it in that way. (to man belongs the plans but the decision comes from the Lord).

No need to take my suggestions - but I would suggest that you confidently do whatever it takes to ensure that your legal presence does not run out. Document everything including tracking numbers. Try to reinstate your F1 via online filing of I539 and waste that $290 for now. You will be asked ALL these questions during your interview and why each application was as it was. Before you depart however, you will need to call USCIS and let them know that you are departing for an interview but have a pending I539, OR write a letter and let them know that you wish to withdraw your case before you leave.

...and oh! your lawyer Jeez! (that you can stay as long as you want as long as you have the D/S stamp on your I-94? Or did I read wrong? Wow! Ouch..that embarrasses the whole profession).

Edit: In my opinion - you are out of status (like me) but have lawful presence (very important) hence not an illegal, and eligible to even adjust your status in the USA.
Hey, that very familiar letter with the paragraph that "you are required to depart the United States...or removal proceedings will be initiated against you..." then followed by "If you move, you must file R** change of address" (indicating that they are on the way to your house LOL so dont move!) can be pretty nerve wrecking. It is all so familiar and I know how much goes on in the head when you read that line!!!

 

[NuvF]

F1 D/S and your current 'status'

I think you have a good understanding on your situation which is a good thing!

Your lawyer's assertion on F1 'D/S' as it applies to you now is WRONG!! (consult another if you're going ahead with anymore 'filings')

In general....... D/S become moot if and when a IO or imm. judge makes a written determination that one is out of status. One would start accruing 'illegal stay' (as applied to 3/10 yrs bar) from that date of determination.

You applied for the F2 c.o.s. when your 'status' was in a pretty murky grounds. However I too think that they should have considered your E2 filing and should not have determined you're not eligible to file for cos. With a good lawyer support I think you will be successful even if it goes to IC. But 'good' lawyers only knows the finer pts. of INA, so consult one asap.

IMO, for you to 'conserve' legal stay now, your best bet is to file MTR for your F2 cos case.(Make sure your F1 wife is in 'good standing' as far as INA reqmts. for her are concerned)
If not, it is best for you that you leave US within 30 days of that F2 case 'determination'.

Best!

PS: Filing I539 on the basis of its 2.1 (c) while you are 'looking for a school', is another strategy for to try 'conserve' legal stay. If you do that make sure you know well what you're doing and what you need to do until you leave the country in May. Check for details particularly in DHS SEVIS related official websites/forums. Your past school DSO may also help I guess.

 

[Luckguy]

I appreciate everybody's feedback.

I think I would reschedule the flight back to my home country soon. Just pay that change fee ($300) to American Airline, better than that useless and meaningless MTR ($630).
Since I have been out-of -status from the first denial date of my E-2 (12/18/11), which means I have more than 100 days of out-of-status as of today. I know I have tried the best to file the MTR for E-2 and file COS for F-2 to do whatever is correct to keep my lawful presence, but that does not flush the record of out-of-status, no matter I have got 1 day or 100 days. This immigration system is really a crap and makes people frustrated.........
My concern is do I need to inform USCIS I am ready to depart USA soon before I leave? Are they still counting the 180 days of out-of-status for me? Or they will get the info when I return the I-94 at the airport?

 

[slash_dot]

My concern is do I need to inform USCIS I am ready to depart USA soon before I leave? Are they still counting the 180 days of out-of-status for me? Or they will get the info when I return the I-94 at the airport?

On the date you leave, the passport you use to to exit the U.S. will be stamped as such. Make sure you get your passport either stamped on exit, or stamped on entry back in your home country. That's basically all that counts; the day you leave. Keep all Boarding Passes too.

Edit:

This may be of interest to you and others reading this thread:

http://bern.usembassy.gov/i-94_departure_card.html

 

[NuvF]

I appreciate everybody's feedback.

I think I would reschedule the flight back to my home country soon. Just pay that change fee ($300) to American Airline, better than that useless and meaningless MTR ($630).
Since I have been out-of -status from the first denial date of my E-2 (12/18/11), which means I have more than 100 days of out-of-status as of today. I know I have tried the best to file the MTR for E-2 and file COS for F-2 to do whatever is correct to keep my lawful presence, but that does not flush the record of out-of-status, no matter I have got 1 day or 100 days. This immigration system is really a crap and makes people frustrated.........
My concern is do I need to inform USCIS I am ready to depart USA soon before I leave? Are they still counting the 180 days of out-of-status for me? Or they will get the info when I return the I-94 at the airport?

DO NOT CONFUSE the 'out-of-status' and 'illegal presence'!!

You F1 based i-94 had D/S, so your illegal presence 'clock' started only from the date of that letter which determined (in writing) that you are oos and that you need to leave. (however,imo, since you got i-94 D/S you still have a grace period of 30 days from that date to leave US)

Imho, knowing that you won DV last yr, you should have just done cos to F2 and wait to do AoS or CP than risk with a shaky E2. Hey what do I know??....just that hind sight is 20/20!!

Best!!

 

[Luckguy]

DO NOT CONFUSE the 'out-of-status' and 'illegal presence'!!

You F1 based i-94 had D/S, so your illegal presence 'clock' started only from the date of that letter which determined (in writing) that you are oos and that you need to leave. (however,imo, since you got i-94 D/S you still have a grace period of 30 days from that date to leave US)

Imho, knowing that you won DV last yr, you should have just done cos to F2 and wait to do AoS or CP than risk with a shaky E2. Hey what do I know??....just that hind sight is 20/20!!

Best!!

The reason I filed the petition to E-2 is because I involved in a restaurant investment, and consideration of the pay check and tax report those stuff once the restaurant is open for business at the end of 2011. I just had not thought the project is struck there due to the short funding of my partner. If I would know that 8 months ago, I absolutely would go for COS to F-2 (easy and less cost). Anyway, things are happening, it is too late to say anything.

The last paragraph of the denial letter is just a kind of an official "copy and paste" for every case.
I am just wondering how to count that 180 days for 3 years of bar? it counts the days of "illegal presence'" or "out-of-status" ? How about the days when I was filing the MTR for E-2 (01/10/12 to 03/09/12)?
By the way, I am ready to reschedule the flight to 04/07/12 (the earliest date available for me).

 

[BigJoe5]

It depends....

If a Motion was filed and it was 1.) timely and 2.) NON-FRIVOLOUS and/or meritorious in fact, then the time it was pending prevents the "unlawful presence" from starting to accumulate. HOWEVER, it can be a long drawn out legal battle to overturn a finding that it was a meritless filing which did NOT block the clock on unlawful presence. Then even if you won that point, the DV deadline could have passed!

Since you are out of status, you are ineligible to file for adjustment and must go abroad, go in the best position possible. Good luck.