i94 Expiry is Out of Status in USA, Visa Denial is Unlawful Presence

i94 expiry makes you out of status in USA. File visa extension before i94 expiry to stay. Unlawful presence starts after i94 expiry with no valid visa status.

Written by Am22tech
  By Am22tech      Updated  25 Aug, 19

  132    


What is Out of Status?

Your i94 expiry date governs your legal stay in USA. You are in lawful status if your i94 has not expired and you are staying in US as per your visa conditions.

Examples:

#1 B1/B2 Visitor or Business visa

You are visiting USA using B1 visitor visa and are staying with your kids. Your status is printed i94 card as B1/B2 and you are just visiting places and enjoying your stay. You are in legal status.

#2 H1B Visa Status – Payroll not running

You are on H1B visa approved for employer A. Employer A is looking for a client project for you and has not started your payroll after your entry to US.

You are ‘out of status’ as your payroll is not running as per H1B visa terms and conditions even though your i94 is still valid.

#3 H4 Visa Status Violation by Working without H4 EAD

If you used H4 visa to enter USA, you are expected to NOT work unless you have acquired H4-EAD (work authorization). If you work and are getting paid on H4 without EAD card, you are violating your US visa status.

#5 Working on H4 without H1B change of Status Approval

If you break any of your existing visa related rule before your status has not been explicitly changed (by you) using ‘Change-of -status’ application, you are considered ‘out-of-status’ for the period you broke the rule.

#6 Staying in USA after i94 expiry

You should file your visa extension before your i94 expiry to avoid status violation and keep staying in USA.

USCIS Period of Authorized Stay

USCIS period of authorized stay allows you to stay in USA while your application to extend status is pending.

You are in ‘period of authorized stay‘ if you filed an extension before your i94 expired.

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 period from the date your visa expired to the date of USCIS decision is automatically converted to ‘Lawful status‘.

Please note that you have to abide by the USCIS decision as and when it happens. There are other rules that need to be followed depending on your visa, in this waiting period. If those rules are not followed, your waiting period could be marked as ‘out-of-status’ even after they take a positive decision.

Am I in Period of Authorized Stay?

Your H1B and i94 expires on Jan 31. You file H1B extension on Jan 1 the same year i.e. before it actually expires.

The i94 and visa expires but USCIS has still not taken any decision.

You are counted ‘out-of-status’ but in ‘period of authorized stay’ until USCIS takes a decision.

Specifically, for H1B, this waiting period is 240 days starting after i94 expiry.

USCIS takes a decision on July 30:

  1. Approval : Your Period of authorized stay from Feb 1 to July 30 is automatically converted to ‘Lawful status‘.
  2. Rejection / Denial: Your Period of authorized stay from Feb 1 to July 30 is counted as ‘period of authorized stay’ only as explained below.

USCIS Unlawful Presence

If you are neither in ‘lawful status’ nor in ‘period of authorized stay‘, then you are in ‘Unlawful presence‘.

How can you be in ‘Unlawful Presence’?

  • You did not file for your H1B extension before its expiry (i94 also expires on Jan 31) on Jan 31. Your ‘unlawful presence’ will start on Feb 1 if you do not leave the country on Feb 1 or earlier.
  • You filed H1b extension before Jan 31 and USCIS rejected your petition on July 30. Your stay in US from July 31 on-wards is counted as ‘Unlawful presence‘.

USA
 



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  132 Useful Questions & Answers

  1. bharath
    bharath 11 Jul, 19 at 7:07 pm

    Hi Anil,

    I have a question regarding my stay here and applying for H1B Transfer.

    I was on H1B with Employer A till May 2019 and before that the amendment was filed for the new project which got denied and couldn’t go back to previous project as it got over. Employer A revoked my earlier approved H1B in july 2019.

    Since another employer B had filed for H1B transfer earlier, I joined him in June 1st week and currently working with him on receipt notice which I want to push it for premium by July end.

    However, my old approval I94 is valid till 13th Sep 2019. At worst case, if my H1B transfer gets denied, will I be out of status?

    And also how much time I can stay in USA when H1B transfer got denied?
    And I am planing to apply for one more H1B transfer(if above H1B transfer gets denied for which I got Speciality Occupation RFE), If I need to do so how much time I will be having to do that?

    thanks,
    bharath


    • Anil Gupta
      Anil Gupta 11 Jul, 19 at 7:17 pm

      You will be out of status immediately on the day of H1B transfer denial if you cannot join any other Employer who’s application is pending at the time of denial.


      • bharath
        bharath 11 Jul, 19 at 7:28 pm

        How much time I would be having to file for another H1B transfer? within how much time it would be better to apply for H1B transfer again? Will it be a problem if I go out of status for few days before filing another transfer?

        In case of denial, do I need to go out of US?


        • Anil Gupta
          Anil Gupta 11 Jul, 19 at 8:00 pm

          There is zero days time after denial as you are immediately out of status.

          File another transfer before you get a denial.


          • bharath
            bharath 11 Jul, 19 at 8:11 pm

            Thanks for the info Anil!


  2. Mangesh
    Mangesh 10 Jun, 19 at 7:32 pm

    Hi Anil,

    My I94 expired on Dec-31-2018. My H1b extension which was filed on Oct-29-2018 was denied in June-10-2019. When does the ‘unlawful presence’ accrual start for my 6 year old daughter who is on H4 dependent visa ? Asking because NTA rule applies to H4 and wanted to know if she has already accrued more than 160 days as of today ? or the couter starts on Jun-10-2019 when decision was made ?


    • Anil Gupta
      Anil Gupta 10 Jun, 19 at 9:53 pm

      Sorry to hear about your denial.
      The unlawful presence starts on June 10, 2019 i.e. the date of H1B denial.


  3. varinder kapoor
    varinder kapoor 29 Apr, 19 at 12:39 pm

    Hi Anil,

    My 797 expires 05/05/2019 and my i94 expires on 05/15/2019. Will I be out of status or Illegal stay if my extension is filled after 05/05/2019. Can I stay in USA after 05/05/2019? What should i be doing?


    • Anil Gupta
      Anil Gupta 29 Apr, 19 at 2:01 pm

      You are legally allowed to stay in US till your i94 expiry date. You should file your extension on or before i94 expiry date to stay legally in US after i94 expiry.


      • varinder kapoor
        varinder kapoor 1 May, 19 at 1:06 pm

        But my 797 has validity till 05/05. What does that mean then?


        • Anil Gupta
          Anil Gupta 1 May, 19 at 1:15 pm

          USCIS gives extra 10 days to wrap up your home, car and other stuff USA after your i797 expires in case you are planning to leave.


  4. srikarrao menneni
    srikarrao menneni 26 Apr, 19 at 9:45 am

    Hi Anil,

    i have applied for extension + amendment, my I-94 got expired on june -08-2018. It got denial notice today. can you let me know what are my options.

    1)with in how many days i have to leave the country?
    2) Do i have option to open Motion to reopen.

    Thanks
    Srikar


    • Anil Gupta
      Anil Gupta 26 Apr, 19 at 10:14 am

      You are immediately in ‘Unlawful presence’ from the day of denial and should plan to leave USA immediately.

      10-15 days time to leave is considered fine after USCIS denial decision.

      You can file an appeal for USCIS decision but chances of approval are very low.


      • srikarrao menneni
        srikarrao menneni 27 Apr, 19 at 11:21 am

        I have few more question.

        1)Can i transfer my H1B to new employer ? If yes i need to go for lottery again?

        2) Can you suggest any other option for me to be back in US.

        Appreciate your help

        Thanks
        Srikar


        • Anil Gupta
          Anil Gupta 27 Apr, 19 at 3:09 pm

          You can file H1B transfer from outside USA without going through lottery if you have not yet used 6 years of H1B quota.

          You can come back to US once your transfer is approved.


          • srikarrao menneni
            srikarrao menneni 27 Apr, 19 at 3:16 pm

            Thanks So much Anil.

            Does H1B transfer have premium processing now?


            • Anil Gupta
              Anil Gupta 27 Apr, 19 at 3:16 pm

              Yes, premium is available for H1B at this time.


              • srikarrao menneni
                srikarrao menneni 27 Apr, 19 at 3:16 pm

                Ok. Thanks once again.


      • srikarrao menneni
        srikarrao menneni 29 Apr, 19 at 9:11 am

        sorry i missed to mention one point here, I have not received the denial notice i have checked my status on case tracker. so 10-15 days time starts from the day when we receive the notice or the case updated date. my case was updated on 04-22.
        can you please let me know from when to calculate the 10-15 days leaving the country.

        Thanks
        Srikar


        • Anil Gupta
          Anil Gupta 29 Apr, 19 at 9:41 am

          10-15 days time starts on the day of denial. It does not matter when you receive the notice or when you see the status online.


  5. sonal srivastava
    sonal srivastava 26 Mar, 19 at 12:51 pm

    Hi if 240 days are over and the extension was filed well in time before visa and i94 expiry, can we stay in US and not work? Received RFE and filed in premium already now so should be getting response in few days, but 240 days just got over and till we wait for premium response is it lawful or unlawful to stay in US bot not work (will be on loss of pay)


      • sonal srivastava
        sonal srivastava 26 Mar, 19 at 1:15 pm

        ok thanks…so in case of amendment plus extension (with the same employer) can we work or we can just stay in US and not work?


        • Anil Gupta
          Anil Gupta 26 Mar, 19 at 1:15 pm

          Please read the linked article. It has clear answer to your question.


          • sonal srivastava
            sonal srivastava 26 Mar, 19 at 1:16 pm

            ok thanks for your help!!


  6. Sukrit Chakravarty
    Sukrit Chakravarty 25 Mar, 19 at 10:40 am

    Hi Anil

    What is the rule for the 15 day clock for premium processing?
    My 15 day clock began on 4th of March and on 6th of March it stopped as I got an RFE.
    Now my 15 day clock has again started with my RFE response on 23rd March.
    So when are my 15 calendar days getting over?

    Also does the 240 day start from the end of my visa or end of my I94?


    • Anil Gupta
      Anil Gupta 25 Mar, 19 at 11:25 am

      Your question about 240 day start from visa expiry or i94 expiry is out of scope of this article. Hence, we have added it to our forum here and answered too.

      You can ask any follow up question on the forum itself. I answer within 1-24 hours.




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