Differences Between: Lawful Status, Period of Authorized Stay, & Unlawful Presence
Lawful nonimmigrant (temporary) status generally is designated by an unexpired arrival / departure form (I-94), issued to the foreign national either by the U.S. Customs and Border Protection (CBP), usually issued electronically, or by the U.S. Citizenship and Immigration Service (USCIS). The I-94 alone, however, is not enough to hold valid nonimmigrant status. It also is necessary for the foreign national to act in compliance with his/her particular lettered classification. For example, an individual in H1B status must work for the petitioning employer, while one who is in H-4 status, who does not have work authorization, is prohibited from working altogether. Generally, a person who fails to comply with the assigned status is no longer considered to be in lawful nonimmigrant status (i.e. out of status). In some instances, as discussed more fully below, for F, M, and J nonimmigrants, failure to act in compliance with one’s status results in unlawful presence.
Period of Authorized Stay
Even if a foreign national is, for a period of time, not holding a lawful nonimmigrant status, s/he may be in a “period of stay authorized by the Attorney General” (i.e. period of authorized stay). One of the most common situations in which this occurs is when a properly filed application or petition to extend or change nonimmigrant status is filed with the USCIS on behalf of a foreign national.
A request to change or extend status is only considered properly filed if it is submitted while the individual is still in a valid nonimmigrant status. As explained above, this generally means that the foreign national holds an unexpired I-94 and is complying with the requirements of the status indicated on that form. In most situations, if the individual’s status subsequently expires while the request to change or extend status is pending, the foreign national falls out of nonimmigrant status, but remains in a period of authorized stay. This period of authorized stay continues until the USCIS issues a decision on the pending case. If the application or petition is approved with an extension or change of status, the decision has a retroactive effect, meaning that the period without status is cured. If it is denied, and the I-94 expired since the application or petition was filed, the individual typically begins to accrue unlawful presence from the date of the denial.
Another very common example of authorized stay is when a foreign national is present in the United States while an application to adjust status (I-485 form) is pending. An adjustment-of-status applicant who does not also have lawful nonimmigrant status (e.g. H or L) generally is considered to be in a period of authorized stay, as long as the properly filed I-485 remains pending.
A foreign national who does not have lawful nonimmigrant status and who is not in a period of authorized stay is generally unlawfully present in the United States. Therefore, an individual who is unlawfully present in the U.S. is also out of status. While the reverse is not necessarily true, in some cases, specifically in the case of F, M, or J students, a foreign national who does not maintain valid nonimmigrant status may also be unlawfully present.
Unlawful presence usually starts when a foreign national remains in the U.S. beyond the expiration date noted on his/her I-94 without having a pending application or petition to extend, change, or adjust status. Typically, days of unlawful presence continue to accrue until the individual leaves the United States. If s/he does have a properly filed application or petition pending, and the case is denied, the foreign national must depart the United States immediately or accrue unlawful presence beginning from the denial date.
A foreign national also begins to accrue unlawful presence upon the denial of an I-485 application if the applicant does not hold valid nonimmigrant status. Further, an individual starts amassing unlawful presence when the U.S. Department of Homeland Security (DHS) or an immigration judge makes a determination or finding of a status violation. A foreign national not inspected and admitted by CBP at the time of entry is also unlawfully present in the United States.
Generally No Automatic Unlawful Presence After Violation of Status
With the exception of foreign nationals in F, M, and J status (see below), a foreign national with a facially valid I-94 card who commits a status violation does not automatically begin to accrue unlawful presence. Rather, s/he is considered to be out of status, but still in a period of authorized stay, unless and until a formal finding is made by the DHS or an immigration judge.
This does not mean that such a person can or should remain in the United States in a period of authorized stay after committing a status violation. Despite the misleading phrase “period of authorized stay,” a foreign national with this designation is not legally in the United States, and can be removed (i.e. deported) by the U.S. government. Being in a period of authorized stay simply means that one does not accrue unlawful presence, which, as explained below, relates to a number of additional immigration penalties.
F, M, and J Status Violations
A foreign national in F, M, or J status, who is present in the United States for the duration of status, which is noted as “D/S” on the I-94, is typically considered in a period of authorized stay, except if s/he commits a status violation. If this occurs, based on policy that went into effect on August 9, 2018, that individual begins to accrue unlawful presence. Examples of actions that can be status violations are failing to pursue the required course of study, or engaging in unauthorized employment. This is a particularly troubling because one who is in F, M, or J status may not realize that a status violation has been committed until s/he is alerted by the university’s designated school official (DSO) or an immigration official (e.g., denial notice issued by the USCIS that makes a status finding). A more detailed analysis of the new policy can be found in the MurthyDotCom NewsBrief, Analysis of USCIS Memo on Unlawful Presence for F, J, and M Nonimmigrants (18.May.2018). A nonimmigrant in F, M, or J status, who believes s/he may have committed a status violation, should consult with an experienced immigration attorney to determine how best to proceed.
Common Implications of “Out of Status” and “Unlawful Presence”
Again, a foreign national who is out of status is subject to being placed in removal proceedings by the U.S. government. A violation of status can also make it more difficult for one to obtain future immigration benefits, such as a visa approval or an extension of status. Furthermore, for individuals in F, M, or J status, a violation of status would trigger unlawful presence.
Unlawful presence also carries with it separate penalties that are triggered upon one’s departure from the United States. Generally, if a foreign national acquires any amount of unlawful presence, this results in the automatic invalidation of the visa “stamp” utilized for admission to the U.S. The individual is only permitted to apply for a new U.S. visa in her/his home country. Unlawful presence of more than 180 days also results in a three-year inadmissibility bar, once the foreign national departs the United States. A period of one year or more of unlawful presence results in a ten-year bar upon departure from the U.S.
If one is out of status, but not accruing unlawful presence, a departure from the United States should not trigger the three- or ten-year inadmissibility bar. Also, in most cases, any unexpired visas in the individual’s passport should still remain valid for future entries. It therefore is vital to analyze the nuances between status violations and unlawful presence when evaluating immigration options and risks.
Both unlawful presence and failure to maintain status prior to filing an I-485 application may result in ineligibility for adjustment of status. There are some limited exceptions that are beyond the scope of this article. One such exception, applicable in employment-based I-485 filings, is discussed in the MurthyDotCom NewsBrief, Green Card Possible After Status Violation: 245(k) Benefit (07.Oct.2011).