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.
A. Overstay, Out-of-Status, And Unlawful Presence – What Do They Mean?
The consequences of overstay, out-of-status and unlawful presence are very stiff and the penalties imposed are very severe.
Let us look at what these terms, and some other key terms related to them, actually mean, and how they are different from each other.
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.
- Those who enter by land should check the I-94 Arrival/Departure Record stapled in their passport.
- Those who enter by air or sea should check their automated I-94 information online within 3-5 days of entry.
Ignorance of I-94 expiration date is not a valid defense if you overstay.
My Case Scenario
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).
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.
Here are a few examples of activities that may leave a foreign national out-of-status:
- working without proper authorization
- overstaying the authorized period of stay issued on an I-94
- being unemployed or “benched” while holding work authorization status such H-1B or L-1
- not attending classes or falling below the required credit load while in F-1 or M-1 status
My Case Scenario
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.
3. Unlawful Presence
Unlawful presence is the presence in the U.S.:
- after the expiration of the period of stay authorized by the Department of Homeland Security, or
- without being lawfully inspected and admitted or paroled.
DID YOU KNOW?
If your I-94 is non-date specific, and states D/S (Duration of Status), then Unlawful Presence begins only when an Immigration Judge or USCIS Officer declares you have violated your status.
B. What Triggers Unlawful Presence?
Unlawful presence may be triggered in any of the 5 ways listed below:
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.
My Case Scenario
Peter’s 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.
C. Out-Of-Status (Unlawful Status) Vs. Unlawful Presence
Out-of-status and unlawful presence are related but very different concepts. The following is a brief outline of the differences between the two.
1. 3-Year And 10-Year Bar
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.
DID YOU KNOW?
A minor child, under the age of 18, does not accrue unlawful presence for purposes of the 3 and 10 year bars until the day after his or her 18th birthday.
2. Being Out of Status Isn’t Necessarily Unlawful Presence
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.:
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.
3. Timely Request For Extension of Stay
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.
DID YOU KNOW?
A foreign national is out-of-status any time they have violated the terms of their visa, but they only begin to accrue unlawful presence when they have stayed in the U.S. beyond the date on their I-94. There are numerous situations where foreign nationals may be out-of-status, but are not accumulating unlawful presence.
D. PUZZLE: Out Of Status Vs. Unlawful Presence
Now that have reviewed out-of-status and unlawful presence, let’s look at a specific situation and see how the rules are applied.
Adam Jenkins is presently in the U.S. on an L-1A visa. His I-94 expired on March 1. One month earlier, on February 1, he timely filed for an extension of stay. Adam’s extension application is still pending and it is now September 5. Adam’s extension has been pending more than 180 days since the expiration of his L-1 status.
|1. Is he accumulating unlawful presence?||1. No, he is not accruing unlawful presence because an application to extend his status was filed before his I-94 expired.|
|2. Does Adam’s protection extend to both 3 and 10 year bars?||2. Yes.|
|3. What if USCIS denies the extension – when does unlawful presence begin to accrue?||3. If Adam receives a denial on the extension request, unlawful presence will begin accruing from the date of the decision.|
|4. What if Adam departed the U.S. while his L-1 extension was pending?||4. If Adam leaves the U.S. before a decision is made on his extension request, he will not have accrued any unlawful presence and will not have been out of status at any time while in the U.S.|
|5. What if Adam’s L-1 extension was denied on February 15 and in its decision USCIS found that Adam improperly worked for another employer without authorization?||5. In this situation Adam was out-of-status because of the improper employment, and he will begin accruing unlawful presence from the date of the decision.|
While it is important to always maintain your nonimmigrant status while in the U.S., at times you may find yourself out-of-status, but not accruing unlawful presence. In this situation you would not become subject to the 3 and 10 yea bar to return to the U.S.
However, if you have overstayed your authorized presence, you are both out-of-status and accruing unlawful presence. You must be aware of the dates on your I-94, critical to unlawful presence, and what you can, and more importantly, cannot do in the status you have been granted.
Have you overstayed your visa in the U.S., or are you out-of-status in the U.S. currently, or have you ever violated the terms of your visa? If you are caught in any of these situations, Consult VisaPro immigration attorney immediately to help you overcome such a situation.
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