If you live in US on a Non-immigrant Visa like H1B, F1, L1, etc. there are many situations, where you will encounter terms such as “being in lawful status”, “going out of status”, “being in period of authorized stay”, or “accruing unlawful presence”…It is important to understand the differences so that you can maintain your status in US and are not subject to any issues. We will look at each of these terms and USCIS guidance on the same.
Before we jump in to other terms, we need to understand, how does one get Lawful Status or popularly called as “Status” in US immigration context.
What is Lawful Status or simply “Status” in US immigration context ? How do you get it ?
When foreign nationals arrive in US and go through US Port of Entry Procedures, they show their valid US Visa in passport and supporting documentation related to their Visa to CBP officer. The CBP officer examines the Visa in passport and the foreign national’s eligibility for that visa. If the CBP officer is convinced, the officer will allow them to enter US on that same visa category as in the passport, thus granting them Lawful status for that visa in their passport.
- Lawful Status in Passport, Validity of I-94 : As part of the process of allowing the individual into US, the CBP officer puts a stamp in the individual’s passport, and writes Visa Category in the stamp and also writes a date that indicates the validity of the lawful status. The visa status given and validity date is updated in Electronic I-94 Arrival Departure Record tied to the individual.
- Lawful Status – Extensions, Change of Status with USCIS : Also, once you arrive in US, you may apply to change your visa type from one to other like F1 to H1B or H1B to H4, etc. or Extend your existing status beyond the expiration date that CBP officer gave you on I-94 Form / Record. For that process, you file an Extension of Status or Change of Status (COS) with USCIS and if USCIS approves the same, they extend your status to a future date or give you a new Lawful Status or Status to you with an updated I-94 slip attached to Approval Notice, that has future date until when you can be in that lawful status in US.
How to maintain Lawful Status or Status in US from Immigration Perspective ?
The lawful visa status or simply ‘status’ given by USCIS or CBP officer does not automatically grant you right to stay in US for the entire duration of the granted status. You as an individual need to maintain your lawful status in order to stay until the expiration of the I-94. The way you maintain your visa status in US is by simply following the rules and regulations tied to your status. You cannot really engage in any activities that violate your visa status. Below are couple of examples on maintaining visa status:
- Maintaining H1B Status : If you are given H1B status, you need to be employed by H1B Sponsor and need to work full time only for them and cannot get involved in any unauthorized employment.
- Maintaining F1 Student Status : If you are given F1 Student Status, you need to be enrolled in school full time and maintain your minimum load of credits and cannot work in off campus jobs and work on-campus as required by school.
Similarly, depending on your visa type, you need to maintain the respective status by only doing activities that are allowed by your visa type. If you engage in any unauthorized activities that your visa status does not allow, then you are violating your status and can have implications when you file for immigration benefits, extension of stay, or be subject to deportation as well…
Now that we know what legal status or status is mean in immigration context, lets look at what is out of status.
What is “Out of Status” in US immigration context ?
If a foreigner living in US does not maintain proper lawful status or status as described above by following the rules relevant to their visa type and does any activities that violates their visa status, then they are considered “out of status”. Also, if your I-94 expires and do not leave the country after I-94 expiry then you are considered ‘out of status’ as well. If someone says, you are out of status, it means that either your I-94 has expired or you have violated your terms of stay in US. Below are some examples.
- Out of Status for H1B Visa : If you engage in unauthorized employment outside of your H1B employer or if you in consulting engagements and not paid by your employer in regular payroll during bench period. Also, staying in US after expiration of your valid I-94 tied to your H1B Visa.
- Out of Status for F1 Visa : If you participate in unapproved Off Campus employment, then you are violating your status. If you are not enrolled in required number of credits as full time student or your SEVIS records are terminated due to some reason during First Semester F1 Transfer as it was not done properly, it will all be considered out of status.
Being out of status may lead to accrual of unlawful presence. But, not always. This is where “Period of authorized stay” comes into picture. Let’s look at that details.
What is “Period of Authorized Stay” or “Period of Authorized Stay by Attorney General” in US Immigration context ?
In certain situations, even though an individual may not have ‘lawful status’ or in ‘out of status’ situation, they may not be accruing unlawful presence as they will be in something called as “Period of Authorized Stay by Attorney general” or simply “Period of Authorized stay”. The most common situation for this occurs when an individual applies for Extension of Status, Transfer or Change of Status (COS) with USCIS. If the individual applies for Extension of Status, transfer or COS before their I-94 expiration, but USCIS does not adjudicate the petition before their I-94 expiry, then the individual is categorized to be in “Period of Authorized Stay by attorney general” from the day of I-94 expiry to the day the decision of extension or COS application arrives. It is portrayed in below image for clarity.
When the individual is in Period of Authorized Stay, they do not accrue unlawful presence ( will look at unlawful presence later in the article in detail ). To be eligible for “Period of Authorized stay”, the individual should file the extension, transfer or COS petition on time before the I-94 expiration. If the pending extension, transfer or COS petition is approved, then it will have retroactive effect on the individual’s lawful status. Meaning that, if your petition is approved, your “out of status” situation from I-94 expiry date is not counted as “out of status”, but rather you will be considered to be in proper status past your I-94 date until current date as your petition with USCIS was approved. But, let’s say your petition gets denied, then your stay between I-94 expiration, until the date of denial of petition is not counted towards unlawful presence. But, you will only accrue unlawful presence from the day of your Extension, Transfer or COS petition denial. See below image that articulates the same.
This is very important as it can have implications on your future ability to enter US. Similar concept of Period of authorized stay occurs during filing of adjustment of status using I-485 form with USCIS. Below is screenshot from USCIS website for official reference. Check Official Reference on USCIS.gov
Also, below screenshot is also from USCIS official reference in their policy manual on the differences. Check USCIS.gov website
What is Unlawful Presence in context of US Immigration?
If a foreigner living in US does not have lawful status or in out of status ( due to activities that violated status) and NOT in period of authorized stay, then they are categorized as unlawfully present in America. Any duration of their stay in such state in US is counted towards unlawful presence in US or in short accrues unlawful presence for that individual. Below are couple of common situations that arise to Unlawful presence.
- Stay beyond I-94 Expiration date without Pending Application for extension, transfer or COS with USCIS
- F1 Students engaged in unauthorized employment off campus or not enrolled in full time course load. Some of the rules tied to unlawful presence changed after Aug 9th, 2018 as it can be applied retroactively. Check F1 Visa Unlawful Presence Memo
Below are the implications of accrual of unlawful presence
- If you accrue or have more than 180 days of unlawful presence, then you will be bar from entering in US for 3 years ( meaning you cannot get any US visa to enter for 3 years)
- If you accrue more than 1 year of unlawful presence, you will be bar from entering US for 10 years ( meaning you cannot enter US on any visa for 10 years)
As the implications of accruing (adding up ) unlawful presence are really big, you should never engage in activities that can put you in situation to accrue unlawful presence. If you are in doubt, you should consult an immigration attorney and get it sorted out.
In summary, every foreigner living in US gests a valid lawful status related to their visa, when they enter US. If they do not maintain their status and engage in unauthorized activities, they will be considered as out of status. If someone is out of status due to I-94 expiration and not in period of authorized stay by attorney general, they are considered as accruing unlawful presence.
What has been your experiences in Period of Authorised Stay or Out of status ? Any tips to share ?