The U.S. immigration process is complex and can be confusing, and is equally true with immigration jargon.
If you are applying for any type of nonimmigrant visa for the U.S., or visiting the United States soon, you need to understand the terms "Overstay", "Out-of-Status (Unlawful Status)", and "Unlawful Presence" so that you can take measures not to fall into any of these categories.
Overstay means staying in the U.S. beyond the date indicated on your I-94 or the corresponding D/S (Duration of Status).
Visa overstay is one of the acts (the most common) that causes you to be 'out of status'. Read more about the consequences of overstaying a visa.
All nonimmigrants who enter the U.S. must check their I-94 upon entry.
Ignorance of I-94 expiration date is not a valid defense if you overstay.
Peter Ivanov, a Russian national applied for a B-2 Tourist Visa at the U.S. Consulate in Moscow. The Consular Officer gave Peter a 10 year multiple entry B-2 visa. Peter travelled to the U.S. on January 5th and at the port-of-entry the Customs Officer gave him an I-94 valid until July 4th, i.e., for 6 months.
Peter Ivanov can legally stay in the U.S. as a B-2 tourist visitor until July 4th. On or before July 4th, Peter should either leave the U.S., or file to change or extend his B-2 status.
If Peter fails to leave the U.S., or apply for an extension of stay or change of status by July 4th, he is deemed to have "overstayed" as he has remained beyond the date indicated on his I-94 (July 4).
Here are a few examples of activities that may leave a foreign national out-of-status:
Each type of visa status comes with certain responsibilities and restrictions that the foreign national must abide by.
Out of Status means that you have violated the terms of your 'Lawful Status' in some way.
Peter Ivanov is remaining in the U.S. after his I-94 is expired. He did not apply for extension of stay and he did not file for change of status. He has overstayed his B-2 status and is Out-of-Status.
Unlawful presence is the presence in the U.S.:
1. Expiration of I-94
Any foreign national who remains in the U.S. beyond his or her authorized period of stay, as noted on the I-94, is unlawfully present.
2. Expiration or Cessation of Parole
Foreign nationals who are paroled into the U.S. will accumulate unlawful presence once the parole is no longer in effect, unless the foreign national is otherwise protected from the accrual of unlawful presence.
3. False claim to U.S. Citizenship
Any foreign national who obtained permission to enter the U.S. by intentionally making a false claim to U.S. Citizenship is deemed to have not been inspected and thus accrues unlawful presence from the date of their arrival.
4. Entering the U.S. without being inspected and admitted
Foreign nationals who enter the U.S. without inspection accrue unlawful presence from the date of their unlawful entry, unless they are protected from the accrual of unlawful presence through some other provision of law.
5. Determination by Immigration Judge or USCIS
Any foreign national who is admitted accrues unlawful presence as of the date an immigration judge or USCIS terminates their status, or makes a determination that there has been a violation of status.
Peterís I-94 was good until July 4th, but he left the U.S. on August 6th. This means he was unlawfully present in the U.S. from July 5th to August 6th.
Foreign nationals who have accrued unlawful presence may be subject to 3-year or 10-year bars. Foreign nationals who accrue more than 180 days but less than 1 year of unlawful presence will be barred from re-entry to the U.S. for 3 years. Similarly, foreign nationals who have been in the U.S. for one year or more beyond the period of authorized stay are barred from re-entering the U.S. for 10 years.
Foreign nationals who are out-of-status but are not accruing unlawful presence are not be subject to the 3 and 10 year bars.
An H-1B nonimmigrant worker may be out of status if the foreign national quits the job and does not work. However, the foreign national is not accruing unlawful presence if the I-94 has not expired.
A foreign national may be out-of-status in the U.S., but may not be unlawfully present in the U.S. if the period of stay authorized by the Department of Homeland Security has not expired.
However, a foreign national who is accruing unlawful presence is, by definition, out-of-status.:
A foreign national with a pending request for extension of stay or change of status, who departs the U.S. while the request is pending, has not accrued unlawful presence, so long as the request was timely and non-frivolous, and the individual did not violate the status in any other way.