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In 2000, I traveled to the US via a J-1 Work And Travel program and lived there, illegally, for 11 years. I was never arrested, or had any trouble with the law, I was never deported. I paid my taxes (had a SSN), had numerous jobs, bank account, etc. About 6 years ago, I decided to leave as I was tired of living like that, not able to be legal, in fear of deportation and losing everything. I just bought a ticket and left to Europe.

I would like to visit my friends back in the US. Is there any chance I won't be let in because they know I've overstayed? I'm living in a European country now, and I no longer need a visa to enter the US (the visa laws have been changed for my country). Would Immigration admit me into the country were I to arrive at the border?

  • When you were admitted on J-1, did your I-94 admit-until date say "D/S", or a specific date? – user102008 May 16 '17 at 19:22
  • Honestly, I don't remember, but I believe it was "admit-until date say "D/S"" – ilushkin May 16 '17 at 19:41
  • @ilushkin Note that once the SEVIS is terminated (which it likely was if the program sponsor is competent) they start accruing illegal presence for purpose of the bar – user 56513 May 16 '17 at 19:54
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    @Sourav Not a duplicate. This case was for a J1 visa holder which like F visas is treated quite differently from other visas in the question you linked to. – user 56513 May 16 '17 at 20:10
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    Does anyone else find the wording of the proposed duplicate and this question oddly close? – Jonas Schäfer May 17 '17 at 6:47
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UPDATE

Seek legal opinion. There is a school of legal thought which says aliens do not begin to accumulate illegal presence upon termination of SEVIS because it does not constitute a formal finding of violation of status.

Several other legal professionals assert SEVIS termination begins the accrual of illegal presence.

Can I return as a tourist Is there any chance I won't be let in because they know I've overstayed? Would Immigration admit me into the country were I to arrive at the border??

Yes you can return however I would strongly suggest you forget it for another few years. For now your friends could visit you where you are or maybe you could meet in a third country, like Canada or Mexico. Not getting arrested, not being deported and paying taxes doesn't change the penalty. If your I-94 did not have D/S but a specified validity date and you went beyond it by more than a year, then you triggered the ten year bar for overstaying more than one year when you exited. If it did have D/S, you didn't accumulate illegal presence however if your SEVIS was terminated (which it likely was if your sponsoring agency is competent), you likely started accruing illegal presence and face the ban.

Module 6: Closing Out Student Records

When you terminate a student’s SEVIS record, your school is no longer responsible for monitoring the individual unless you request a data fix on the record or you recommend reinstatement. In these two cases, you are still responsible for maintaining the record and reporting on the student. If you do not request a data fix or reinstatement for a student with a terminated SEVIS record, you should let the student know that he or she must depart the United States immediately. Students who do not leave may accrue unlawful presence and may be barred from reentering the United States.

You will be eligible to return to the USA ten years after you left. I will advise you to get a visa before coming at that time because you are very likely to be denied entry if you attempt entering on VWP. Of course you could file for a waiver however from your statements you don't qualify.

Consequences of Unlawful Presence in the U.S.—Three– and Ten-Year Time Bars

Three Years

If you spent more than 180 continuous days (approximately six months) in the U.S. unlawfully and then left voluntarily (before being caught and placed into removal proceedings), you could be barred from coming back for three years.

Ten Years

If you spent more than one continuous year in the U.S. unlawfully, and then left for whatever reason (including being deported), you could be barred from coming back for ten years.

ALIENS UNLAWFULLY PRESENT

Under section 212(a)(9)(B) of the Act, an alien is inadmissible if the alien has accrued a specified period of unlawful presence, leaves the United States after accruing the unlawful presence, and then seeks admission during the period specified in (either 3 years or 10 years after the departure, depending on the section 212(a)(9)(B)(i) duration of the accrued unlawful presence).

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    Also from reading the linked page, if you do attempt to enter, whether you are admitted or not, you will then trigger a permanent ban. – stannius May 16 '17 at 18:33
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    This is incorrect. "Unlawful presence" only automatically starts accruing when one stays past the date on their I-94. It does not automatically start accruing just because someone went out of status. The OP was on J-1, who are most likely admitted with "D/S" (not a date) on their I-94, and thus it is impossible for them to stay past the date on their I-94; rather, they simply went out of status if they do not stay in a program -- i.e. they do not automatically start accruing "unlawful presence" no matter how long they stay past the end of their program. – user102008 May 16 '17 at 19:19
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    It is also possible for "unlawful presence" to start accruing when an immigration judge makes a final order against them in a deportation hearing, or when the OP applied for a benefit to USCIS and was denied for being out of status, but neither of these things happened. – user102008 May 16 '17 at 19:20
  • @SheikPaulofOsawatomie: "However note that once the SEVIS is terminated (which it likely is if the program sponsor is competent) they start accruing illegal presence for purpose of the bar. " Nope. That is not one of the situations in which one starts accruing "unlawful presence". – user102008 May 16 '17 at 20:40
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    @SheikPaulofOsawatomie: No it doesn't. Your quote only says "may", not that it does. See AFM Chapter 40.9.2(b)(1)(E)(ii), which describes the situations in which someone admitted for D/S can start accruing "unlawful presence". There are only two: 1) "If USCIS finds a nonimmigrant status violation while adjudicating a request for an immigration benefit", and 2) "If an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings" – user102008 May 16 '17 at 20:55
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From the information you have provided, you most likely have no ban. But not having a ban does not mean you will be able to get an ESTA/visa, or be allowed to enter the US.

The ban that is relevant here is the INA 212(a)(9)(B) ban where if you accrue 180 days / 1 year of "unlawful presence" and the leave the US, you trigger a 3 year / 10 year ban, respectively. The question is whether you accrued any (and if so, how much) "unlawful presence" before you left the US. The definition of "unlawful presence" is highly technical and is what matters here.

You were in J-1 status, and people entering on J-1 are usually admitted for "D/S" (Duration of Status) on their I-94s, rather than a date. You said you believe it was "D/S" (you should check to make sure); for the purposes of this answer we will assume that it was "D/S".

The USCIS Adjudicator's Field Manual Chapter 40.9.2(b)(1)(E)(iii) deals with what can trigger "unlawful presence" to start accruing for someone in F/J/M status prior to August 9, 2018:

F, J or M nonimmigrants who failed to maintain nonimmigrant status before August 9, 2018

F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the alien had already started accruing unlawful presence on the earliest of the following:

• The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the alien violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;

• The day after the Form I-94, Arrival/Departure Record expired, if the F, J, or M nonimmigrant was admitted for a date certain; or

• The day after an immigration judge ordered the alien excluded, deported, or removed (whether or not the decision is appealed).

For someone who was admitted on "D/S" (not a date) on their I-94, there are only two situations that would trigger "unlawful presence" to start accruing prior to August 9, 2018: 1) you requested some immigration benefit from USCIS, and while adjudicating it, they found a status violation, and they denied the benefit you requested because of the status violation, or 2) you were in a removal/deportation hearing and an immigration judge made an order against you. From your description, it seems neither of these apply as you were never in removal/deporation proceedings, and you never applied for any benefit to USCIS during the time after your program ended, and furthermore it doesn't seem like you ever received a formal finding of status violation.

The Department of State Foreign Affairs Manual describes it similarly:

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:

(2) (U) For aliens inspected and admitted for "duration of status" (DOS), any period of presence in the United States, unless DHS, IJ, or the BIA makes a formal finding of a status violation, in which case unlawful presence will only begin to accrue as of the date of the formal finding;

9 FAM 302.11-3(B)(1)(d):

d. (U) For persons who have been admitted for duration of status (DOS) (as is usually the case with aliens in A, G, F, J, and I visa status), unlawful presence will not accrue unless DHS, IJ, or the BIA finds a status violation in the context of a request for an immigration benefit in the course of a 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 alien begins accruing unlawful presence on the date of the finding (i.e., the date the finding was published /communicated.

With that said, just because you don't have a ban doesn't mean you will be able to get an ESTA/visa (when you said "I'm living in a European country now, and I no longer need a visa to enter the US", you mean that your country of nationality is part of the Visa Waiver Program; but you will still need an ESTA to go to the US on VWP if you arrive by air), or be allowed to enter the US. They will likely know about your period of overstay in the US, and if asked on any form about past overstaying or violating the terms of your visa, you must truthfully say yes and provide details. With such a history of long overstay, you are very likely to be denied an ESTA or visa, or be denied entry to the US if you make it there. Even people with perfectly clean immigration histories (or no histories) are regularly denied US visas; with a history of overstay like yours, it will be even harder. However, you are free to try; it is not impossible for you to get it.

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