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10-Aug-2000 02:54 AM
  Being "out-of-status" vs. being an "overstay"
Frank
 What's the difference between being out of status and overstaying. We realize if a person overstays for 180/360 days she will be denied entry for 3/10 years. However, if she is just out of status she can reenter even if she lost her status due to unauthorized
employment. When "of status" becomes "overstay"?

The difference is somewhat difficult to describe, but I'll give it a try.

There are a lot of people who are "out-of-status" for one reason or another, but who do not immediately risk the three or ten year re-entry bar for being an "overstay." The reason has to do with how the two are defined.

If you're on a tourist visa, one way to become an "overstay" would be to stay beyond the date that's expiration date that's written on your I-94 card (usually six months after your date of entry). F-1 visa holders have "D/S" written or stamped on their I-94 cards, which allows them to stay for the "Duration of Status."

If an F-1 visa holder goes "out-of-status," the "clock" for the overstay bars to re-entry (of three or ten years) does not start until an INS official has made a judgment that they are "out-of-status."

So a person could be out-of-status for quite some time before any such judgment is made. Given the potential consequences of an unfavorable judgment, there's not a lot of incentive to apply for a reinstatement, unless you're very confident that it will be granted. The better alternative is to leave the U.S. and to return with a new I-20 for "initial attendance."

Regarding reinstatements and being "out-of-status," its of course ideal if you can remain a full-time student and not otherwise have any problems maintaining legal status throughout your time here. There are a lot of circumstances that a person might get into, however, where it's rather unclear as to how your status might be effected. International student advisors often disagree as to how a student's situation should be interpreted, or whether a set of circumstances might put a given student "out-of-status."

If you have a good int'l. student advisor, he or she will at least keep you informed about how to maintail your legal status. Some advisors will interpret the rules according to the letter of the law, and some by the spirit of the law. In either case, if an advisor interprets your situation such that they regard you as being out-of-status, ask (as one option) about getting a new I-20 for "initial attendance" (and plan on leaving the U.S. for at least a short trip home.)

A good advisor should at least be helpful as you consider your options, one of which is to remain out-of-status (the consequence being that you would not be eligible for a work permit, a change of visa classification, etc.; you could, however, continue your studies.) If the advisor knows his or her job, they would never report you to INS. That said, INS will have no knowledge of your being out-of-status unless you apply for a reinstatement. (This would put you at risk of being denied reinstatement, which would begin the overstay "clock.")

Let me know if that helps toward answering the question. More later.
10-Aug-2000 12:51 PM
 Re: Being "out-of-status" vs. being an "overstay"
Lin
 One word of caution to this explanation. It is the responsbility of the Advisor to report to the INS when INS requests information. Curently, INS has not been making such requests but with the new CIPRIS systems comming online in the near future this information will be automatically updated. This information includes the persons status (full-time or part-time). This is not to say that an advisor would go out of his way to inform on a student.
10-Aug-2000 01:26 PM
 Re: Being "out-of-status" vs. being an "overstay"
Frank
 I'm not sure how soon the CIPRIS system will be coming on line, but apparently not as soon as it was first expected. But yes, it would tend to create a more accountable atmosphere, both for the schools and for the international student population. Definitely something to be aware of.
10-Aug-2000 02:55 PM
 Re: Being "out-of-status" vs. being an "overstay"
Jane
 I think INS hasn't actually audited a school's records, or asked for a list of out of status students since around 1987. Since then they seem to have been in an undeclared "don't ask, don't tell" mode, where they haven't asked, and the schools haven't told.

The only leverage that schools seem to have in keeping students in status is the positive incentive of eligibility for a work permit, and the negative incentive of the fear of being turned in, should INS decide to ask the schools who is in status.

Fortunately INS does not have a financial incentive to do audits. The opposite is true for the IRS (the tax collectors). For INS, audits just mean more work, and they already have their hands full.

Whether or not we've done anything wrong, we all live with a certain amount of fear that the IRS will try to make an example out of us. At present I'm sure that's a more realistic fear with IRS than it is with INS, though its hard so say how the times might change with CIPRIS or some other program or law.
11-Aug-2000 03:53 AM
 Re: Being "out-of-status" vs. being an "overstay"
Webmaster
 This was very helpful. I think we have a lot to learn here at F1Student.com.

I still have some questions (sorry). So DSO doesn't have to report out-of status students to the INS. Does it depend on the DSO's goodwill or there are some guidelines for reporting students? Is it used as a disciplinary measure?

I understand a student has to go out of the US and not to Mexico or Canada for under 30 days. Can she go to some Central American country for a week, for instance, instead of going back to her home country?

Does the INS makes an out-of-status decision as soon as it gets a report from an Advisor? Do they inform the student on their decision to let her know when the "overstay clock" starts?

Do you know what a student would have to do in this situation if her school does not have a professional Advisor (I know there should someone issuing I-20s).

Thanks in advance.
11-Aug-2000 11:40 AM
 Re: Being "out-of-status" vs. being an "overstay"
Jane
 Q: So DSO doesn't have to report out-of status students to the INS. Does it depend on the DSO's goodwill or there are some guidelines for reporting students? Is it used as a disciplinary measure?

A: Designated School Officials (DSOs), also known as a foreign student advisors, don't typically report out-of-status students to INS. An exception might be in the case where a student has entered the U.S. on a school's I-20, but never showed up at the school for classes.

I should elaborate on this. When you enter the U.S. the "School Copy" of the I-20 is taken at the port-of-entry. That copy first goes to INS, and eventually shows up back at the school that issued it. Sometimes the I-20 takes about a year to get back to the school, but eventually it does, and the DSO then checks to see whether there's actually a student who ever enrolled with the name of the student that's on the I-20. If not, some DSOs might send a copy of that I-20 back to INS, indicating that the person had never in fact been a student there.

Otherwise DSOs don't actively report students to INS. We encourage students to maintain their legal status, and try to help them do so, but the system is essentially voluntary. There are, of course, certain benefits to maintaining your status, which you lose when not maintaining status, but its really up to you as how you choose to live. Any good advisor will try to help you maintain status, but they're not going to actively report you - save the exception noted above - unless INS were to ask for a review of their records.

Apparently this lax system will change when INS starts their "CIPRIS" program. They'll then have a much more direct view of each students status from semester to semester.


Q: I understand a student has to go out of the US and not to Mexico or Canada for under 30 days. Can she go to some Central American country for a week, for instance, instead of going back to her home country?

A: Yes, though if a person is out-of-status, he or she should talk with their DSO about these plans. Even Canada, Mexico, or the Caribbean Islands would be fine, but it would depend on whether the port-of-entry official actually processed the documents on the return trip. As you know, a person can come and go from these places within a 30 day period with a signed I-20, an I-94 card, and their expired F-1 visa. It's important to come back with a new I-94 and processed I-20, and going to Canada, Mexico, or the Caribbean may not work.


Q: Does the INS makes an out-of-status decision as soon as it gets a report from an Advisor? Do they inform the student on their decision to let her know when the "overstay clock" starts?

A: If a student decides to apply for reinstatement, the INS discovers that the person is out-of-status by their own admission. If INS then decides not to grant a reinstatement, then the 180 day clock for the three-year bar would start, as well as the 360 day clock for the ten-year bar. Typcially the Advisor does not report the student to INS, except perhaps in the situation described above. On the other hand, an Advisor who understands that a person is out-of-status cannot grant certain benefits to that person, such as an endorsement for a work permit application, etc.


Q: Do you know what a student would have to do in this situation if her school does not have a professional Advisor (I know there should someone issuing I-20s).

A: This is a problem. There's a wide range of people working in the role of international student advisor. Their knowledge of the law, and their sense of responsibility to it both vary quite a lot. Unfortunately you really have to stick with person or people who have been given that responsibility at your school.

It might help to get a group of students together to schedule an informational question and answer session with the person or office in charge of F-1 visa matters. If you have these kinds of questions ready, you'll at least learn more about how your particular DSO handles certain situations. For better or worse, ultimately you'll have to live with whatever perspective they've come to on these kinds of things.
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