Visas and non-immigrant status come in a variety of “flavors.” There’s the A visa for Ambassadors, B for tourists, C for crewman (like on cruise ships), U for victims of violent crime and F for students. Each visa has its own set of rules. For example, someone with B status cannot lawfully work in the U.S., someone with a C visa cannot apply for adjustment of status in the United States, and U visa holders can apply for adjustment of status after three years.
Most visa-holders are told a specific date by which they must leave the United States. If they remain in the U.S. past that date, they start accruing unlawful presence. If they have between six months and one year of unlawful presence, they cannot return to the U.S. for three years. If they stay in the United States without status for more than a year, then they have a ten-year bar from re-entering the country, that is if they don’t get a waiver approved.
The F visa is for students, typically those enrolled in U.S. institutions of higher learning. How many of us knew the exact date we were going to graduate? Plans change, interests change, life intervenes. For these reasons, F visa holders aren’t given a specific date to leave the United States by. When they are admitted into the United States, the note “D/S” is placed on their entry stamp.
“D/S” stands for “Duration of Status.” That means that as long as they stay enrolled in a full-time course of study, they are in status and are absolutely fine to be in the United States. Even if the F-1 visa holder graduates, there really is no date where USCIS could start to count unlawful presence time against the student. Is it the date of the last final? The date of graduation – but what if they enroll in another program?
Under “D/S” someone can remain in the United States and not have an unlawful presence. They may be out of status if they’re not in school, but there’s no unlawful presence. This means that if they leave the U.S., they don’t have three- and ten- year bars against them. The only time an F-1 student may have an unlawful presence in the United States is if an Immigration Officer or Immigration Judge makes that finding. Otherwise, the F-1 student never has an unlawful presence, which is a huge benefit. Sure, they may have trouble getting another non-immigrant visa, but maybe they have a family member who filed an immigrant visa petition on their behalf.
We had a situation like this recently. Gloria came as a student to the U.S. in the early 2000s. Her mother became a U.S. citizen, but since Gloria was over 21-years old when that happened, Gloria wasn’t an immediate relative. Her mother could only file an I-130 and Gloria a place in line. Gloria remained in the United States waiting for the visa bulletin to show that it was her time to file for an immigrant visa.
After a 15-year wait, Gloria’s priority date became current. She couldn’t apply for her green card in the United States because she wasn’t in status, but she could leave the United States and apply for her immigrant visa back at home because she didn’t have any unlawful presence.
When I told Gloria that she would have to leave, but that she should be able to return to the U.S. within about two weeks, she was wary. But she trusted us and she left for a home she hadn’t seen in nearly twenty years. The consular officer saw that Gloria had an F-1 visa with “D/S” and knew that despite the lengthy stay in the U.S. without status, she could get her visa. Gloria’s visa was approved and this weekend, she returned home to Georgia. She is now a lawful permanent resident of the United States and can live without fear.
This is definitely a situation where you’ll want to talk with an experienced immigration attorney before undertaking a trip abroad for an immigrant visa. A lot of different pieces of have to exactly right in order for this to work – and if it doesn’t work, you’ll be stuck outside of the United States.
We are so happy for Gloria and are honored to have been part of this journey with her!
-Tracie