OUT OF STATUS
Each individual in the United States has an immigration status. Examples include F-1 status, J-1 status, H-1B status, parole status, lawful permanent resident status, and U.S. citizen. Immigrant status is assigned to individuals who are formally seeking to remain in the U.S. permanently, while nonimmigrant status is granted for a limited time and for a specific purpose.
A nonimmigrant’s status is reflected on Form I-94, as is their period of authorized stay in the U.S. Most nonimmigrant statuses expire on a specific date; this is true for H-1B and B-1 nonimmigrants, for example. However, Forms I-94 for those in F and J status will state “D/S” instead of a specific expiration date; “D/S” = “duration of status.” For an F or J, the time limit is the date of the end of the program that is listed on the I-20 (F) or DS-2019 (J) plus a grace period (60 days for F and 30 days for J).
If nonimmigrants stay in the U.S. longer than the date listed on the relevant document (I-20 expiration date plus grace period for an F-1, I-94 expiration date for an H-1B), then they are out of status; put another way, they have overstayed their visa status.
A nonimmigrant’s status is also limited by the rules set for that type of nonimmigrant. For example, F-1 students cannot work without permission and must carry a full load of study while in school; H-1B employees may only work for an employer whose petition on their behalf was approved. If the F works without permission or drops below a full course of study, or an H-1B employee works for a different employer or stops working, that nonimmigrant has violated their status and is considered out of status.
Any nonimmigrant in the United States who is out of status is in the United States without permission and is removable (also known as deportable). If and when a nonimmigrant’s failure to maintain their visa status by overstaying their visa or some other status violation comes to the government’s attention, the Department of Homeland Security will start the process to remove (also known as deport) the person from the United States.
UNLAWFUL PRESENCE
Unlawful presence is defined as a period of stay not authorized by the U.S. Government. If a nonimmigrant maintains their status by following all the rules relevant to the nonimmigrant visa type they hold including leaving once their authorization to be here expires, nonimmigrants are considered to be “lawfully present” and cannot accumulate unlawful presence.
Lawful presence is defined a period of stay authorized by the U.S. Government. As a matter of policy, there are certain situations in which the nonimmigrant is out of status but is still given permission by the USCIS to remain in the United States. Usually this happens when some type of application is pending. For example, if a B-2 nonimmigrant is applying for a change of status and their B-2 status date expires while the application is pending, that applicant has permission to remain in the United States while waiting for the application to be decided. While the application is pending, the applicant has lawful presence, even though they are out of status. However, if the USCIS denies the application, then the decision of the Service Center Director ends the nonimmigrant’s lawful presence and unlawful presence the day after the denial.
If a person accumulates 180 or more days of unlawful presence and then leaves the United States, they cannot come back for three years from the date of departure. If a person accumulates 365 days of unlawful presence and leaves the United States, they cannot come back for ten years from the date of departure.