Period of Authorized Stay vs Out of Status and Unlawful Presence Info article

Period of Authorized Stay vs Unlawful Presence vs Out of Status – FAQs

In US Immigration - Visas by KumarUpdated : 24 Comments

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.  

Difference between Lawful Status vs Periof of Authroized Stay with Approval by USCIS- Flow Chart

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.  

Difference between Lawful Status vs Periof of Authroized Stay with Denial by USCIS - Flow chart

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

USCIS Guidance on Period of Authorized Stay

Also, below screenshot is also from USCIS official reference in their policy manual on the differences. Check USCIS.gov website

Lawful Immigration Status vs Period of Authroized Stay USCIS Guidance

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 ?

   

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Comments ( 24 )

  1. Nitin

    Hi,
    After my Visa stamping I got a chance to come to US after 18 months. Just before coming my employer filled an amendment. So I’m having two I797, one which I received after coming to US which is valid till 2021 and old which is valid till sept 2019. Both are from same employer.

    My I94 is about to expire which I got as per old I797. How to get my I94 updated as per new petition ?

    Thanks,
    Nitin

  2. .Alice

    Hi Kumar, thanks for throwing light to these sensitive situations on immigration statuses.
    I had extended my I-94 thrice due to my child’s delicate health and disability. The last extension came with a RFE and they were all approved.
    I decided to seek a lawful permanent status due to my child’s
    complex health since the extension of my stay was now unarguably insufficient for her array of health needs. I relied on the extreme hardship she would face back home in an undeveloped country stating salient reasons why she would be at risk in 2016.
    My child just had a major surgery last March and was born here.
    The application is still pending and I wonder if I am on the right path to a permanent lawful status.
    Please, what’s your advice on how to go about this?

    1. administrator
      Kumar

      Yes, as USCIS has been approving due to your hard circumstances, it should be fine and hope they approve the current request as well. I cannot speak for the permanent lawful status…I suggest you speak to an attorney and discuss your options.

  3. Raghu

    Hi, Thanks for the detailed explanation. However my case is different. I extended my h1b and got till Feb 2021. Then i changed job and still waiting for decision. If my h1b is rejected, can i stay a few more weeks and apply h1b from another employer? What are my options as i have valid i94 (not in passport, but in previous approval notice) , but h1b employer change is rejected

    1. administrator
      Kumar

      Having I-94 valid from previous employer may not be relevant, if you exceeded 60 days. If your H1B gets denied, your period of authorized stay will end. As you do not have status, you will not be able to apply for another transfer…However, if the previous employer has not withdrawn the H1B petition, there may be a chance to activate your H1B, but you need to check if that is possible with your old employer. These situations are very tricky especially after I-94 expiration and you should consult an immigration attorney and then make an informed decision.

  4. Raja

    Hi team,
    Thanks for sharing the valuable information
    My spouse has applied COS(F2 to H4) in MArch 2018 ,as soon as my H1B got approved in Feb 2018. I recieved an RFE on her petition to submit latest payslips and employment letter, which i have responded in timely manner with all those documents and including my H1B reciept. Now that i have my new H1B approved which was a transfer petition. i have requested the USCIS for outside normal processing time on my spouse COS and they have responded that it is taking more than usual time for processing the petitions. Can i consider my spouse under “Period of authorized stay” as her old i94 has not expired and we did apply a new COS petition in timely manner.

    Regards
    Raja

    1. administrator
      Kumar

      Yes, as her application was applied before the I-94 expiration, she is considered to be in “period of authorized stay” and does not accrue any unlawful presence.

  5. Kartik Jairaj

    I got married in Nov 2017 and my wife came to USA on F2 visa in April 2018.I have filed COS from F2 to F1 visa for my wife in Aug 2018.Case was received by uscis and got receipt number in Aug 2018. Meanwhile my employer filed H1b for me and it was approved in November 2018. Now i am on H1b visa and my wife is in COS.

    Recently after several service and expedite requests i got an rfe for maintainance of status. I do not know what to do now. Should i respond to rfe or abandon the application and try in India for fresh F1. time to respond to rfe is less than 2 weeks. If after the rfe response the application is rejected will my wife be out of status and how is out of status days calculated?

    Any help is deeply appreciated.

    Regards
    Jay

    1. administrator
      Kumar

      RFE for F1 COS ? In general, if you have not violated status and in good standing, you should submit details supporting the RFE and get it resolved. If there is denial, you should leave immediately. If you are not sure, talk to the DSO at school or talk to your attorney and then take informed decision.

      1. Kartik Jairaj

        Thanks for the reply Kumar.Appreciate your response on this one. Yes I got an rfe for f1cos and they are asking for present principal and dependent i20’s . Since I don’t have the docs requested what am I supposed to do. Any suggestion is appreciated.

        Regards
        Jay

        1. administrator
          Kumar

          Well, if you do not have documents to support, it is best to go for fresh stamping. Logically, you can support your case with your changes and how it also affected your spouse. Discuss with an attorney, if there is an option to defend and support the RFE. If no choice, go for the stamping by exiting country soon. Leaving the country will automatically abandon COS petition.

          1. Kartik Jairaj

            Thanks for the reply, Kumar. I have decided to stay and fight as i have done nothing wrong. I will provide them all the documents i have and hope for a positive reply.

            Regards
            Jay

    2. Angela

      I travel on an ESTA and am permitted back in USA after a reasonable period
      What is a reasonable period… 30 days ? 90 days ?

        1. Angela Strunger

          I am wondering what the reasonable period is between visits.
          Is 30 days enough or would I have to remain out for 90 days before re entering
          I know exiting to Canada or a neighbouring country is all part of the ESTA permissIon.

          At the border I no longer show a hard copy as it is in the system.
          Another change for anyone asking… I used the same ESTA when I renewed my passport as it had not expired.

  6. Mukesh Sharma

    Hi Kumar,

    Thanks for the very descriptive information. however one question; if the visa extension/renewal gets denied by USCIS, is the person supposed to be gone on the same day or 1 week or 10 days is ok to wrap up the affairs and then depart the country? What is the time frame which wouldn’t adversely affect the future visits to US.

    Thanks a lot for clarifying.

    1. administrator
      Kumar

      USCIS guidance is to leave immediately, you can check the screenshot in above article. They do not give any number of days to be more specific. While, it is not official, anything like few days should be fine. Unless, you have a medical situation or some other emergency. If so, you need to talk to an attorney and then clarify.

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