Differences Between: Lawful Status, Period of Authorized Stay, & Unlawful Presence19 Apr 2022
Regular readers of MurthyDotCom have likely come across the terms: lawful status, period of authorized stay, and unlawful presence. These related, yet distinct concepts can play a very important role in one’s immigration matters. However, the differences can be subtle and complex. In many situations, the outcome of an immigration case may turn on whether an individual was in lawful status, a period of authorized stay, or unlawfully present. Therefore, it can be essential to understand the differences between these concepts.
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. Citizenship and Immigration Service (USCIS) or U.S. Customs and Border Protection (CBP). However, the I-94 alone is not enough to hold valid nonimmigrant status. It is also necessary for the foreign national to act in compliance with his/her particular lettered classification. For example, an individual in H1B status generally must work for the petitioning employer, while one who is in H-4 status is prohibited from working altogether without a valid employment authorization document (EAD). Generally, a person who fails to comply with the assigned status will not be considered in lawful nonimmigrant status any longer (i.e., out of status).
Period of Authorized Stay
Even if a foreign national is, for a period of time, not holding a lawful nonimmigrant status, the individual 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 person 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.
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 have lawful nonimmigrant status, such as 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 the 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. But the reverse is not necessarily true.
Unlawful presence usually starts when a foreign national remains in the U.S. beyond the expiration date noted on the I-94 without having a pending application or petition to extend, change, or adjust status. The individual typically continues to accrue days of unlawful presence until s/he leaves the United States. If there is a properly filed application or petition pending, and the case is denied, this 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 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.
No Automatic Unlawful Presence After Violation of Status
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. 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 and J Status Violations
A foreign national in F 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, even if a status violation is committed and there is no pending application or petition. If this occurs, the individual, as described above, does not begin to accrue unlawful presence until a formal finding of the violation of status is made. But, again, one who is in this situation is not permitted to remain in the United States and is subject to deportation.
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 also can make it more difficult for one to obtain future immigration benefits, such as a visa approval or an extension of status.
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 still should remain valid for future entries. It is vital therefore 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 (28.Mar.2022).
This brief overview covers only some of the situations in which it is imperative to have an understanding of the differences between a period of authorized stay, unlawful presence, and a valid status and the serious implications they can have on one’s immigration process. When questions arise, the attorneys at the Murthy Law Firm are available to help navigate the complex rules that govern the status of foreign nationals.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.
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