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Lawful Nonimmigrant Status and Out of Status Vs. Unlawful Presence

Lawful Nonimmigrant Status and Out of Status Vs. Unlawful Presence

Lawful Non-Immigrant Status and Out of Status

Vs.Unlawful Presence

Lawful Nonimmigrant Status: Lawful nonimmigrant status is generally conferred upon those who have a valid, unexpired I-94. Customs and Border Protection and USCIS can issue I-94 cards; I-94 cards may be issued electronically (typically, during entry at the border), or in paper form (usually, sent to you by USCIS).

Unlawful Status(Out of Status): Every visa type has corresponding rules. For example, a B1/B2 visa holder cannot accept work, and an H1B holder must work for the employer who petitioned for them. Unlawful Status can refer to an individual who violates the terms of their visa. An individual will fall ‘out of status’ on the date that they violate the terms of their non-immigrant visa. Also, if someone overstays their visa, they will be out of status. Lastly, if someone enters the U.S. without inspection, they are immediately out-of-status. Someone can be out of status but not accruing ‘unlawful presence.’ Additionally, someone can be out of status but in a period of authorized stay.

Unlawful Presence: You accrue unlawful presence when you are present in the United States without admission or parole, or when you are not in a period of authorized stay. This typically happens in one of two ways:

Entry without Inspection: When someone enters the United States without inspection, they immediately begin to accrue unlawful presence.

Expiration ofAuthorized Stay: When someone stays in the United States beyond their period of authorized stay, they maybegin to accrue unlawful presence.

April 1, 1997: Any unlawful presence incurred before April 1, 1997, is not counted.

Out of Status vs. Unlawful Presence: An individual may be out of status but not unlawfully present. Here is an example:

  1. Mary is present in the United States on an H1B, which is valid from October 1, 2017-September 30, 2020. Mary enters the United States on October 1st and has a valid I-94 card admitting her until September 30, 2020. Mary quits her job on January 1, 2020. Mary is in ‘unlawful status’ (i.e., out of status) because she has violated the terms of her non-immigrant visa (she quit working for the petitioning employer); however, she is not accruing unlawful presence as her I-94 granted her admittance until September 30, 2020. She will begin accruing unlawful presence if she stays past September 30th.
  1. Someone who is unlawfully present is always ‘out-of-status.'
  1. An easy way to remember the distinction is that someone is unlawfully present if they do not have lawful (unviolated) non-immigrant status, or if they are not in a period of authorized stay.

Why does Unlawful Presence Matter?

Unlawful presence matters because if you accrue too much of it, and depart the United States, you may be subject to certain grounds of inadmissibility. For a complete discussion on unlawful presence, click here. For a review of the 3 and 10-year bars, click here.

If you are out of status or believe that you have accrued unlawful presence, please contact a knowledgeable and experienced immigration attorney. Our attorneys at Landerholm Immigration, APC, have extensive experience in cases involving unlawful presence, grounds of inadmissibility, and waivers. Please feel free to call us at 510-574-7377 to see how we can help! 


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