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My post-completion OPT ended in mid-February 2020. Covid-19 happened, borders were closed initially. Ideally, then I could have departed in August when tickets were more affordable, but circumstances led to a later departure.

I had no intention of extending my stay or changing to another educational level. I was in contact with my DSO, she didn't emphasize reinstatement back then (though just last year I learned that if one applies for reinstatement within five months of falling out of status, they might avoid accruing unlawful presence.) I left the U.S. in mid-September.

Upon leaving, I contacted my DSO, she said that my SEVIS record was completed in mid-April 2020.(60 days of grace period)

My question is:

  1. Was I out of status? or violated any F1 rules?
  2. Have I accrued 150 days of unlawful presence and how it differs from overstay?
  3. Note that, SEVIS was not terminated, is it a factor?

I discovered that

international students in authorized D/S do not accumulate unlawful presence until an immigration judge or officer finds a status violation during an immigration proceeding or application for an immigration benefit

Since I voluntarily left the country and never faced any proceedings, did I accrue any unlawful presence?

Given this background, I am seeking guidance on what to anticipate when applying for a new F1 visa for masters/phd and how best to prepare my documents, such as a letter from my DSO. My I-94 shows four departures and arrivals during my studies, with no other violations. Will it be a positive point to disclose?

Your advice will also be helpful for me in answering "Have you ever been unlawfully present or overstayed or violated any terms of a U.S. visa" when completing DS160 for a new F1.

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  • @NicolasFormichella "You only start accruing proper unlawful presence after 180 days of overstay": this is incorrect. The rules governing the accrual of unlawful presence are somewhat complicated, but in no circumstances does someone begin accruing unlawful presence after 180 days of overstay.
    – phoog
    Jan 10 at 8:45

1 Answer 1

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  1. Was I out of status? or violated any F1 rules?

Yes, you were out of status after your grace period was over, 60 days after completing your OPT.

  1. Have I accrued 150 days of unlawful presence

No, you almost certainly did not accrue any days of "unlawful presence". "Unlawful presence" only starts accruing under one of 3 situations:

  1. You stay past the date on your I-94.
  2. You apply for a benefit to USCIS, and are denied together with a determination that you are out of status.
  3. You are placed in removal proceedings in immigration court, and are ruled out of status by the immigration judge.

As an F1 student, you were almost certainly admitted for "D/S" on your I-94, instead of a date. People admitted for "D/S" cannot meet the first condition above, so they do not accrue unlawful presence unless either of the latter two conditions happen (i.e. they must have applied for a benefit to USCIS, or were placed into removal proceedings). I am assuming that neither of these things happened.

See USCIS Adjudicator's Field Manual chapter 40.9.2(b)(1)(E)(ii) (on page 76 of this PDF):

(ii) Nonimmigrants Admitted for Duration of Status (D/S). If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit, unlawful presence will begin to accrue on the day after the request is denied. If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, unlawful presence begins to accrue the day after the immigration judge's order. It must be emphasized that the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated.

And 9 FAM 302.11-3(B)(1).b(2):

b. (U) DHS has interpreted "period of stay authorized by the Secretary of Homeland Security," as used in this context, to include individuals who:

(2) (U) were inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, an IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only being to accrue the day after the formal finding is made;

which is further reinforced in 9 FAM 302.11-3(B)(1).d:

d. (U) Unlawful presence will not accrue for persons who have been admitted for duration of status (DOS) (as is usually the case with individuals in A, G, F, J, and I visa status), unless DHS, IJ, or the BIA finds a status violation in the context of a request for an immigration benefit or during removal proceedings. This finding of status violation by the DHS, an IJ, or the BIA will cause a period of "unlawful presence" to begin. In DOS cases where DHS or an IJ or the BIA makes a formal status violation finding, the individual begins accruing unlawful presence on the day after the finding (i.e., the date the finding was published /communicated). For example, if an applicant presents a letter from DHS dated December 1, 2008, that says the applicant was out of status starting on May 28, 2001, the applicant began to accrue unlawful presence as of December 2, 2008, not May 28, 2001.

(Note that USCIS put out a memo in 2018 that sought to make people in F and J status accrue unlawful presence when out of status starting in 2018, but this was blocked by the courts, and DHS accepted the court's decision. See this page for a summary of the litigation history. A preliminary injunction was granted on 5/3/2019, and a permanent injunction on 2/6/2020. On 7/31/2020 DHS asked to dismiss its own appeal, and the court granted it on 8/3/2020. As you can see from the above quotes, the current USCIS Adjudicator's Field Manual does not include the changes from the memo.)

and how it differs from overstay?

"Overstay" is not a well-defined term in immigration law.

Your advice will also be helpful for me in answering "Have you ever been unlawfully present or overstayed or violated any terms of a U.S. visa" when completing DS160 for a new F1.

You will have to answer Yes since you violated the terms of F1, even though you did not accrue unlawful presence.

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  • Thanks a lot. Can below these be a positive effect in the visa interview? 1. a scholarship for new studies 2. Prior no violation or frequent USA exit and entry while studies And how likely is it that even if I get a visa, CBP can still take any actions just because I violated F1 due to covid?
    – wonderer
    Jan 13 at 7:07

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