It is important to understand your ‘period of authorized stay’ to determine whether you are out-of-status and/or accruing unlawful presence. These are some common scenarios:

  1. Entry Without Inspection (EWI): When someone enters EWI, none of their time in the United States is authorized.
  1. Non-Immigrant Visas: Generally, there are two types of periods of authorized stay for non-immigrant visa holders-those who are admitted for a fixed period and those who are admitted for ‘duration of stay’ (i.e., D/S). To determine your period of stay, you should review your I-94 card, or your I-797A notice of action from USCIS, if you’ve been granted an extension.
  1. Fixed Period: If your I-94 card states a specific ‘admit until’ date, then only periods of stay beyond that date are ‘unauthorized.’ If you have been granted an extension, then your USCIS approval notice should provide you an end date.
  1. Duration of Status (D/S): People typically granted admission for ‘duration of status’ are those in F-1, J-1, or M status.
  • Before August 9, 2018, those who were admitted for D/S were not in an unauthorized period of stay until an immigration judge or a USCIS officer made a determination on their status. Typically, for an immigration judge, this would be in the form of a deportation order. For USCIS, this would be the denial of a change of status or extension of status petition.
  • On August 9, 2018, this policy changed. F, J, and M visa holders who failed to maintain their status before August 9, 2018, began accruing unlawful presence on August 9, 2018 (unless a determination had already been made on their case by an immigration judge or a USCIS officer).
  • After August 9, 2018, an F, J, or M visa holder is no longer in a period of authorized stay and begins to accrue unlawful presence on (1) the day after they are no longer pursuing their course of study (or authorized activity), or (2) the day after they engage in unauthorized employment, or (3) the day after completing their course of study, or (4) the day after the Form I-94 expires, or (4) the day after an immigration judge orders the person removed.
  1. Visa Overstay: Staying past your I-94 ‘admit until’ date or the end of your F-1 or J-1 program is commonly referred to as ‘visa overstay.’
  1. Conditional Residents (CR): Conditional Residents are in a period of unauthorized stay from the day they fail to timely file form I-751 to remove their conditions. If a CR late files form I-751 and USCIS accepts it, they will not have accrued any unlawful presence.
  1. Filing for Adjustment of Status: Applying for adjustment of status will toll the accrual of unlawful presence, and the individual will be considered a period of authorized stay, although the individual may technically be out of status. If the application is denied, the individual will begin accruing unlawful presence unless they are in a valid non-immigrant visa status.
  1. Filing for a Change or Extension of Status: So long as a visa holder files for a change or extension of status before the expiration date on their I-94, they will be considered to be in a ‘period of authorized’ stay while their petition is pending. Once your I-94 card expires, you cannot file for an extension or a change of status. If the individual’s status expires while the change or extension of status application is pending, then their case is dependent on the outcome of the status application. If the application is approved, the person will not accrue any unlawful presence; if the application is denied, the applicant typically begins accruing unlawful presence from the date the application was denied.

For a complete discussion on unlawful presence, click here. For a review of the 3 and 10-year bars, click here. For a discussion on the differences between being ‘out-of-status’ and accruing unlawful presence, 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) 491-0291 to see how we can help!!