The U.S. immigration process is complex and can be confusing, as can immigration jargon. If you are applying for any type of nonimmigrant visa for the U.S., or if you will be visiting the United States soon, you need to understand the differences between “Overstay,” “Out-of-Status (Unlawful Status),” and “Unlawful Presence,” so that you can take measures not to fall into any of these categories. The consequences of overstay, out-of-status and unlawful presence are very stiff and the penalties imposed are very severe. Therefore you must take care not to fall in any of these categories.

Before we look at the differences between overstay, out-of-status and unlawful presence, let us first look at what these terms, and some other key terms related to them, actually mean.

Lawful Presence

You would generally enter the United States legally if you have applied for and received a visa at a U.S. consulate in your home country or abroad, and are inspected and admitted by a U.S. Customs officer at a U.S. port-of-entry. The visa stamp in your passport does not guarantee entry into the U.S., it only allows you to seek entry. It is the officer at the U.S. port-of-entry who decides whether or not to grant you entry into the U.S. The Customs officer at the U.S. port-of-entry gives you a ‘Lawful Status’ that governs your authorized period of stay in the United States when he or she admits you.

Once you enter the U.S. you must maintain your lawful status. If you file a timely (i.e., before your current status expires) non-frivolous application for Extension of Stay or Change of Status, you will still be considered to be in a period of stay authorized by the Department of Homeland Security until the date the USCIS makes a decision on the application. If the decision is negative, unlawful presence would start accruing from the date of the decision and not from the date of the expiration of the prior nonimmigrant status.

CASE SCENARIO - LAWFUL PRESENCE
Peter Thompson, 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 traveled to the U.S. on January 5 and at the port-of-entry the Customs Officer gave him an I-94 valid until July 5, i.e., valid for 6 months only. Thus, Peter’s Lawful Status is the time stamped on his I-94 Arrival/Departure document. At the end of the period (after the date written on the I-94), i.e., on July 5, he must either leave the U.S. and re-enter at a later date with the visa, or file to change or extend his ‘Lawful Status’ before his current stay expires.

Overstay

Overstay means staying in the U.S. beyond the date indicated on your I-94 or the corresponding D/S (Duration of Status). Overstay is one of the acts (the most common) that causes you to be ‘out of status’.

NOTE

Persons admitted for duration of status can only overstay if found to be in violation of status.

Click here to read the consequences of overstaying a visa.

CASE SCENARIO - OVERSTAY
Peter Thompson can legally stay in the U.S. as a B-2 tourist visitor until July 5. After July 5, Peter should leave the U.S. and re-enter with the visa or file to change or extend his B-2 status. When Peter fails to leave the U.S. by July 5, or apply for an extension of stay or change of status before the expiration of his B-2 status, he is staying beyond the date indicated on his I-94 (July 5) and he is overstaying his visa.

Out-of-Status

Out of Status means that you have violated the terms of your ‘Lawful Status’ in some way. Each status comes with a bundle or rights, or activities that you are allowed to participate in. Examples of activities that will leave the foreign national out-of-status: working without authorization, a fiancé(e) who dies not marry the U.S. citizen who petitioned him or her for K-1 fiancé visa, student not going to the school which issued him or her their 1-20, and conviction of a serious crime.

CASE SCENARIO - OUT-OF-STATUS
Peter Thompson 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 thus is Out-of-Status because he does not have any valid status in the U.S.

Unlawful presence

Unlawful presence means presence in the U.S. after the expiration of the period of stay authorized by the Immigration Inspector/Custom’s Officer at the time of entry. It also includes any presence in the U.S. without being inspected and admitted or paroled.

NOTE

If your I-94 is non-date specific, i.e D/S (Duration of Status), then Unlawful Presence begins when an Immigration Judge or USCIS adjudicator declares you have violated your status.

What Triggers Unlawful Presence?
1. Entering the U.S. other than through an established port of entry. Thus, foreign nationals who are present in 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.

2. 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. Any foreign national who obtained permission to enter the U.S. by intentionally making a false claim to USCIS or has not been inspected and admitted. Those foreign nationals thus accrue unlawful presence from the date of their arrival.

4. Any foreign national who remains in the U.S. beyond his or her authorized period of stay, as noted on the I-94.
 

CASE SCENARIO - UNLAWFUL PRESENCE
Back to our case study, Peter. The time that Peter spends in the U.S. after falling ‘out-of-status’ is when he will start accruing Unlawful Presence in the U.S. Peter’s I-94 was good until July 5, but he left the U.S. on August 6. This means he was unlawfully present in the U.S. from July 6 to August 6, and his unlawful presence started accumulating from July 6, i.e., the date when he became out-of-status.

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. As noted above, 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 card. There are numerous situations where foreign nationals may be out-of-status, but are still not accumulating unlawful presence, some of which are listed below:

● A minor child, under the age of 18, does not accrue unlawful presence for purposes of the three and ten year bars until the day after his or her 18th birthday.

● A foreign national may be out-of-status in the U.S., but may not be unlawfully present in the U.S., whereas a foreign national having unlawful presence is, by definition, out-of-status. For instance, a nonimmigrant student on an F-1 or J-1 visa who is granted “Duration of Status” or “D/S” may be out of status if not enrolled in a school but would not be accruing unlawful presence for purposes of the 3 and 10 year bars.

●  A foreign national is unlawfully present in the U.S. if he or she is either present after the expiration of the period of stay authorized by the immigration inspector at the time of entry, or is present without being admitted or paroled.

On the other hand, out-of-status means that a foreign national has violated one of the rights or restrictions that are accorded a previously valid status. For instance, an F-1 student who drops out of school is out-of-status. However, a foreign national with a valid I-94 will not start accruing unlawful presence until an immigration judge or the USCIS makes a determination that the foreign national is out of status.

●  A foreign national with pending request for extension of stay or change of status, and who departs the U.S. while the request is pending, does not accrue unlawful presence, so long as the request was timely and non-frivolous, and the individual did not violate their status in any other way.
 

NOTE

Foreign nationals who are out-of-status for a reason other than overstaying their authorized stay may not be subject to the 3 and 10 year bars. Whereas foreign nationals who have accrued unlawful presence are directly linked to the 3-year and 10-year bars. Thus, 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 three 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 ten years.

Now that we have been through the review of out-of-status and unlawful presence let’s look at a situation and see how the rules are applied.

PUZZLER
Peter Thompson 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. Peter’s extension application is still pending and it is now September 5. Peter’s extension has been pending more than 180 days since the expiration of his L-1 status.
Questions
1. Is he accumulating unlawful presence?
2. Does Peter’s protection extend to both 3 and 10 year bars?
3. What if USCIS denies the extension – when does unlawful presence begin to accrue?
4. What if Peter departed the U.S. while his L-1 extension was pending?
5. What if Peter’s L-1 extension is denied and in its decision USCIS finds that Peter improperly worked without authorization?

Answers
1. No, he will not accrue unlawful presence until a decision has been made on the pending extension request.
2. Yes
3. If Peter receives a denial on the extension request unlawful presence will begin accruing from the date of the decision.
4. If Peter 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. In this situation Peter is out-of-status because of the improper employment, and he will begin accruing unlawful presence from the date of the decision.
 

Conclusion
While it is important to always maintain your nonimmigrant status while in the U.S., 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 year bars to returning 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.