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 : 53 Comments

If you live in US on a Non-immigrant Visa like H1B, F1, L1, etc. there are many situations, where you will say people talking about “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. This article will cover 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 “Status” in US immigration context ?

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 ?

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 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 ( 53 )

  1. Jai Simha

    Hello,
    H1B is about to get revoked anytime, applied for Master(classes were started) and COS to F1 is pending.
    If My H1B gets revoked so I-94 expires, can I stay and continue my master degree with the Pending COS.

    Do I have to file B2 cos to bridge the gap between the future i-94 expiry date and COS to F1 approval date.

    if nothing else works, what are my options to stay In US and work around.

    1. administrator
      Kumar

      Jai Simha,
      Well, this is tricky, usually the DSO may or may not allow that. You need to discuss with your DSO. You may start the program on H1B, if you are still on that status and then maintain that status until you get F1. No sure, if that is an option, but that’s how you transition properly.

  2. Randy

    I lost my job and filed for I140 compelling circumstances ead during 60 days grace period. I received an RFE for which i am yet to respond. Meantime, i got a job with my old employer. H1B transfer has been initiated and my priority date is current. So I filed for I 485 as well. Do I need to go for a consular processing to get my H1b stamping to start working or can i start working upon getting my receipt notice?

  3. Shreya Ishita

    Hi Kumar,

    Thank you for your article. Super helpful! I’m reaching out on behalf of my SO. He is on H1B and is switching jobs. He already has an approved H1B from his new employer and was hoping to take 2-3 weeks off while staying in the States before he starts at his new job. He was told by his lawyers that taking time off in between jobs and staying in the States for that period would mean that he’ll be out of status as technically he is not working for any employer in that time off.
    Given this context, what would your advise be on taking this time off? Do you think this could lead to any future issues e.g., RFE on PERM/Green Card application? Any stats/data to size this risk will be super helpful in making an informed decision. Thank you!

  4. Natasha

    Hi, I came to the US on B1/B2 visa on 25 jan 2019 and based on medical treatment received one extension till 25 Jan 2020. I then applied for another extension in Jan 2020 which is still under process and I requested in that application to allow me to be in the US for medical treatment till 30 Sept 2020. I received a very extensive RFE in Aug 2020 which I will be responding to this month. Ques:
    1. If my extension request is approved, can I expect it to be till 30 sept 2020 or does uscis only give 6 month extensions at any given time. I had a doctor’s letter to support my request to extend till 30 sept 2020.
    2. If my request gets denied then does it mean that I have held unlawful presence from 25 Jan 2020
    3. If my extension request is denied, how can I travel during covid? Esp since I have undergone chemotherapy and my immune system is compromised and I am 71 years of age.
    4. If I stay for a day after the receiving the denial, will my visa be void?

    thank you
    Natasha

    1. administrator
      Kumar

      Natasha,
      Usually they give maximum of 6 months.
      Until you get a decision, your status is not considered unlawful. Your unlawful status accrues from that day.
      Usually, it not recommended to stay after you get denial. You should discuss with an attorney and plan it out, if you are not clear on these.

    2. Randy

      I lost my job and filed for I140 compelling circumstances ead during 60 days grace period. I received an RFE for which i am yet to respond. Meantime, i got a job with my old employer. H1B transfer has been initiated and my priority date is current. So I filed for I 485 as well. Do I need to go for a consular processing to get my H1b stamping to start working or can i start working upon getting my receipt notice?

  5. Mathis

    Hi Kumar,

    My scenario is similar to the second diagram that you have shared in this article. But one small change is, After the H1B Denial, my employer filed again but this time my H1B got approved (for 2 more years) via consular processing. So, I don’t have i94 now. I need to go out of the US for the stamping. So in this scenario Am I staying unlawfully? What are the options now as I can’t travel outside of the US?

    1. administrator
      Kumar

      Mathis,
      If you do NOT have valid I-94 then you are not in status. If the approval only came for consular processing and no I-94, then you are not in status. Talk to attorney immediately and discuss options. You may file a Nunc Pro Tunc asking for B2 COS as you cannot travel out. USCIS may consider…

    2. Sunny

      Hi,

      Great Article. Had a question and would appreciate your thoughts on it.

      I was laid off on H-1b in May and I understand I have 60 day grce period. But my I-94 is still valid for more than 2 years. Would it make sense for me to apply COS to B-2 to remain in the country and can I simply stay on my valid I-94 and look for jobs?

      If I can stay in my valid I-94, then will it have any implications when a new employer has to file for H-1b petition beyond the 60 days?

      Thank You!

  6. Korra Sato

    Hey!

    Thank you for the article! It helps a lot!

    However, I have a question.

    I have a H1B Visa but recently lost my job due to massive layoffs and have roughly 40 days left on my 60 day grace period. The validity of both my I-94 as well as H1B visa are valid till next year September.
    I am unclear on what happens if I stay beyond the 60 days grace period, and till the validity of my I-94 expires.
    In this situation, if I find a new job (i.e., after the 60 day period but before the I-94 and H1B expiration) would I still be eligible for a ‘change of employer’ petition? Or would I have accrued unlawful presence?

    Looking forward to your response !

    1. administrator
      Kumar

      Korra Sato,
      No, you will be out of status after 60 days. USCIS will not approve your change of employer. They will ask you for proof of status and you cannot submit anything as you do not work now…So, that will count as violation of status…Yes, you will accrue unlawful presence.

      1. Korra Sato

        Hello! Thank you for your response! This really clarifies a lot of my dounts.

        I have two follow up questions –

        1. Is there a difference between ‘failure to maintain status’ versus ‘ violation of status’ with respect to a visa holder becoming out of status or an unlawful presence?

        2. If I stay beyond 60 days, and not apply for change of employer upto the validity of my i-94 (September next year), would I still accrue unlawful presence?

        Thank you!

        1. administrator
          Kumar

          Korra Sato,
          1. These all are used synonymously and they all will add up to your unlawful presence.
          2. Yes, you will start to as you are technically not in status nor in period of authorized stay. Just imagine, you are involved in some difficult situation and they check your immigration status, then you would be in big trouble.

          1. Korra Sato

            Hello!

            Thank you for your informative responses ! They’re really helpful.

            I wish to ask a follow up question with respect to the proclamation made by the US President today .

            Will the suspension of H1B Visas under that have an effect on my situation? I am in the 60 day grace period and my new employer will be applying for a “H1B Transfer” (AKA Change of Employer) . Does a change of employer come under the ambit of this proclamation?

            Thank you!

  7. Kartik

    My wife’s F1 OPT status expired on Dec 31st, 2019. We had filed an H4 COS petition in mid-Dec 2019. We received a denial notice on Apr 29, 2020. The reason for denial is because USCIS adjudicated the case based on my H1b petition from a previous employer. Our attorney is filing a motion to reconsider/reopen, and also simultaneously re-filing for H4 COS. Now the question that we have is, does her “unlawful presence” period start accruing from Dec 31st 2019 (when her F1 OPT status expired), or does it start from Apr 29 2020 (when the H4 COS was denied)? Our attorney was ambiguous in their reply about which date is considered for accrual of unlawful presence.

    1. administrator
      Kumar

      Kartik,
      The unlawful presence will start from the decision date, which is Apr 29, 2020 as that is the decision date. You were in period of authorized stay until April 29, 2020.

  8. Leo

    What if after I submit the COS to F1, and before I get the approval, I have to renew my passport? Do I need to notify USCIS on that?

    1. administrator
      Kumar

      Leo,
      Yes, you need to update them. They may issue RFE too, if the passport expiry is close and they do not adjudicate. better to renew passport and then apply for COS.

  9. Random

    Hi Redbus,

    My h1b petition was expired on last year 5 August 19 and i-94 was on 15 August 2019.

    My h1b extension is on progress , How 240 days are calculated from h1b expired or i-94 expired ?

    As h1b petition , 240 days are finished on 1 April 2020.

    As i-94 , 240 days are getting finished on 10 April 2020

    Can I stay after my 240 days with out salary ?

    Thanks ,

  10. Mandy S

    Kumar,

    Can an F1 Student trying to get H1b be forgiven for unauthorized employment (68 days)?

    -Left the country and reentered under a new sevis record ( if that counts)
    – It was an Internship within my field of study.

    1. administrator
      Kumar

      Mandy,
      Well, technically you violated your status during that…that’s the bottom line. Sometimes, exiting and re-entering the country will remove such issues…So, it may have been gone…I would suggest you speak to an attorney and get this clarified to be sure…

  11. Sahar

    Hello,
    I am h1b holder and my H1b valid till 31st Jan 2021 and I94 valid till 02-Feb-2021. My spouse is on her H1b which was valid till 31stDec2019 and I94 valid till 10-Jan-2020. Her H1b extension is in progress. In this case for worst case happen like h1b petition denial then within how many days I can file her H4 (COS)?

    Today it’s 2nd Jan 2020, and if I file Her COS(H4) before 10th Jan 2020 and her H1b is still in process then which case take priority to consider her status? If Both H1 and H4 is in process and H1 approval come then may I withdraw her H4?

    1. administrator
      Kumar

      Sahar,
      It all goes by last action rule, meaning, whichever comes last takes effect. So, if you file her H4 now and that comes after H1B, then it would take precedence. But, if you travel out and come back after H1 is approved, then COS will be abandoned as you left the country…so, these are small tricks. I suggest you talk to your H1B attorney and make a decision.

  12. Shefali

    Hi Kumar,

    I have a question regarding COS to H4. My husband has an approved H1B since October 1, 2019. I was on a J1 visa until September 30, 2019 and have applied for COS to H4 in September. My Biometrics appointment was also done on September 25. The processing time for the I-539 on the USCIS website for the California centre is showing 4-6 months. We had made plans to travel to India in December, so I was wondering would it make sense for us to travel to India and me applying for H4 through consular processing along with my husband in India, since he needs to get his H1B stamp also. I am confused whether my abandonment of cos will affect the consular processing or rather if that is even advisable.

    1. administrator
      Kumar

      Shefali,
      It is absolutely fine to travel to India an get H1B and H4 stamping. yes, your H4 will be abandoned, but that will NOT create any issues for your stamping there…don’t worry about it..Many have done it…You can always check with your spouse’s attorney and be prepared.

  13. 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

  14. .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.

  15. 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.

  16. 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.

      1. Nisha

        Hello I was in the same situation I came USA on sept 2019 and in jan 2020 my husband’s H1B approval came but I applied for Change of status after 5 months (F2-H4)
        I delayed it because I wanted to come back to India and get my F1 visa but could not come due to pandemic. Should there be a problem for me in getting my F1 visa?

  17. 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.

  18. 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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