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I have a friend in the USA who overstayed her F1 visa for several years with D/S on her I-94. She wants to return to her home country but she is afraid that she might be detained at the US airport when she exits. She contacted a lawyer and the lawyer told her she might be imprisoned for at least 3 to 10 years in the US for overstaying her visa. Will she be detained when she is trying to fly back to Australia?

Note: Some Australians got detained due to waiver overstay when they tried to leave. One was a 26-year-old guy (http://www.abc.net.au/news/2017-05-02/australian-detained-in-us-for-overstaying-visa-by-90-minutes/8489612), the other was a 24-year-old girl (https://www.huffingtonpost.com.au/entry/immigration-detention_n_7074032).

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    I don't think we're qualified here to give better advice than a lawyer, especially when the lawyer has had a detailed consultation with the client and we haven't. If she doesn't trust the lawyer's advice she could get a second opinion from another lawyer.
    – Nate Eldredge
    Commented Jul 3, 2018 at 18:32
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    Could be a misunderstanding with the lawyer. Overstaying can lead to a 3 or 10 year ban on reentry to the US. But without being a lawyer I don't want to say imprisonment is impossible. Has she committed any crimes? (Overstaying is illegal but not a crime.) Better idea to ask another lawyer.
    – krubo
    Commented Jul 3, 2018 at 18:44
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    It sounds like her ex is trying to scare her into staying.
    – phoog
    Commented Jul 3, 2018 at 20:33
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    With regard to your edit: both of those people were exiting via the Canadian land border, and they were turned back by Canadian authorities, whereupon they had nowhere to go but to the US, which then detained them. So the lesson to be learned there is that if your friend wants to leave the US she should fly out.
    – phoog
    Commented Jul 9, 2018 at 14:56
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    In reading about the cases you note, it appears both people were trying to game the system. They were not detained for overstaying and trying to leave, they were detained for overstaying and then pretending to leave while intending to remain in the U.S. As to why ICE would go to such extremes for two white middle-class Australians, possibly it's because they're white middle-class Australians—ICE needs to make a big show that they're not only after poor Latinos, and that the laws apply to people from the first world as well as the others. Could be bureaucracy, could be politics—likely both.
    – choster
    Commented Jul 10, 2018 at 0:13

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First, the US has no exit checks, no matter when departing by air, sea, or land. One never interacts with immigration authorities when departing the US. Theoretically, CBP could conduct random checks at the gate, but I have never seen that happen in my travels. In general, anyone can leave the US at any time with no problems as long as they can enter the destination country. One's status in the US is irrelevant.

Second, though overstay is illegal, it is not a crime in the US and cannot cause her to be sentenced to a term in prison. The mention of 3 and 10 years sounds like this "lawyer" is confusing it with the 3-year and 10-year ban. Under INA 212(a)(9)(B), if one accrues 180 days of "unlawful presence" and then leaves the US, they trigger a 3-year ban (i.e. will be inadmissible for 3 years after leaving the US); if one accrues 1 year of "unlawful presence" and then leaves the US, they trigger a 10-year ban (i.e. will be inadmissible for 10 years after leaving the US).

But even if this "lawyer" thought she would trigger a ban upon leaving, that would be incorrect in this case, as overstay and "unlawful presence" are different things. Someone must stay past the date on their I-94 in order to start accruing "unlawful presence"; someone admitted with "D/S" on their I-94 does not start accruing "unlawful presence" by staying past any date, even if they stayed for years past the end of their program. The only other ways to have started accruing "unlawful presence" are: 1) if they applied for some benefit to USCIS and were denied along with a determination that they were out of status, or 2) if they were given a final order by an immigration judge in removal proceedings in immigration court. Assuming that neither of these things have happened, your friend has not even accrued a single day of "unlawful presence" so far. 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. See 8 CFR 239.3

Even if she has no ban, it would likely be very hard for her to get most types of nonimmigrant visas to the US in the future given her overstay.

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  • "Theoretically, CBP could conduct random checks at the gate, but I have never seen that happen in my travels": there's a user on flyertalk who claims to see this regularly and frequently. I find the claims credible. He says that he flies frequently to destinations that are apparently hubs for international money laundering. CBP presumably chooses those flights because of a greater chance of finding people traveling with undeclared cash or equivalents over the $10,000 limit. They also check people's immigration status while they're at it.
    – phoog
    Commented Oct 16, 2018 at 14:17

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