I would like to know why lawyers cant agree on the statement that someone couldn't get a GC via Consulate Processing if they have overstayed their visa stamped with "D/S"?. Some say that you could trigger the 3-year or 10 -year bar and some other that you may obtain it via Consulate Processing ( I guess it would be very difficult)?
Divorce / Separation Lawyer
There is no way to answer your question. Lawyers probably can't agree because you did not furnish a the facts.
The reason lawyers can't agree on this venue is that some have more experience than others and the vagaries of governmental decisions results in quite opposite opinion at times.
The answer provided here is general in nature and does not take into account other factors that may need to be reviewed for a more precise answer. You should consult with an immigration attorney before taking any action. The answer here is not intended to create an attorney-client relationship.
Generally speaking, an alien who is admitted for duration of status (D/S) and fails to maintain lawful nonimmigrant status does not accrue unlawful presence in the U.S. except under limited circumstances. Whether those circumstances are applicable to you will depend upon the specific facts of your case.
You need to consult with an experienced immigration attorney who can review the facts of your case and advise you how to proceed given your particular situation. Click on the link below for help in what to look for when retaining experienced immigration counsel.
While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for general information purposes only and an attorney/client relationship is neither intended nor created. You should seek out qualified counsel to review your case and provide you with advice specific to your situation. Call +1-561-478-5353 to schedule a consultation with Mr. Devore.
D/S students are a 'unique' creature and therefore, as Mr. Devore (with whom I agree) stated, not all lawyers know about this obscure provision.
Note Example #3 http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-17138/0-0-0-18383.html
The DOS has a similar interpretation. Note paragraph #d http://www.state.gov/documents/organization/87120.pdf
PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.
You talking abstract lawyers and abstract ostensible disagreement they have over this issue. This "disagreement" only exists in your head. There cannot be any disagreement on the subject as clear as this one unless you are not talking to immigration lawyers but notarios or "travel agency" or some other non-lawyers you call "lawyers". The questions consists of two subparts. 1. When D/S designation actually renders you out of status. 2. Can you seek consulate processing on a DV win if you are out of status. First question is important because the correct answer to it predicates the answer to the second question. D/S status bearer is out of status when SEVIS is terminated by the school so that USCIS determines you are out of status. If you are out of status for longer than 6 months, you are inadmissible for 3 years. 365 days overstay renders you inadmissible for 10 years. Hence, you cannot consulate process your DV in either circumstances. If you overstayed for less than 6 months, the consulate will most likely deny your DV based immigrant visa anyway. This time on discretionary grounds.
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