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  31 Oct, 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. PC
    PC 18 Feb, 19 at 9:42 pm

    Hi Anil,

    I have question about my stayin’ here in USA.
    Im previously H1 Visa holder. Last November 30, my visa expired.
    My wife’s petition for my I-130 was submitted on Oct 2016 and was approved on Dec 2017.
    I was submitted my I-485 to USCIS on May 2018 and was interviewed last August 2018.
    Until now, my Greencard were not yet received. USCIS website says “Interview Was Completed And My Case Must Be Reviewed”.
    NOw, somebody told me that I need to exit before 180days from visa expiration (which is I94 expiration is the same with my H1 visa).
    Do I need to exit ? I have my EAD and will expire on Oct 2019.

    Thanks,
    Pc


    • Anil Gupta
      Anil Gupta 18 Feb, 19 at 9:54 pm

      Your question is not clear to me.
      Who filed your wife’s i130?
      You said your H1B expired and then you said i have my h1B valid.

      I don’t understand your current situation.


      • PC
        PC 18 Feb, 19 at 10:00 pm

        Sorry for that.
        My wife’s filed petition for me and it was submitted and approved. She is LPR.

        My current situation is Waiting for greencard approval. but somebody told that I need to exit before 180days from visa expiration.(it was expired last Nov 30. Means before May 30, 2019.


        • Anil Gupta
          Anil Gupta 19 Feb, 19 at 8:19 am

          You can stay in US based on your pending i485 application.
          Are you currently working using H1B visa?

          If not, have you applied for your change of status to pending i485?
          Have you received your i485 EAD or Advance parole?


          • PC
            PC 19 Feb, 19 at 6:59 pm

            I am using my combi card (EAD&advance parole) for working.
            H1B visa was expired last Nov 30.
            Actually, I don’t want to travel until my green card arrival coz if I travel outside the US, the parole is not guarantee. They might refuse me to parole into the US.
            My worry is the 180days rule. I dont know what it is. Thanks


            • Anil Gupta
              Anil Gupta 19 Feb, 19 at 7:29 pm

              I am not sure about which 180 day rule you are talking about. You have your i485 pending EAD and you should be good to stay in US.


  2. Vikas
    Vikas 15 Feb, 19 at 6:11 pm

    Hi Anil,

    My questions is similar to Raghav’s.
    My I94 is expiring on Feb 18th and my attorney has sent the documents today by Overnight shipping – it got delayed because my client did not confirm the project, however this is still a back-up option as I am awaiting for a response on a previously filed petition aswell.
    These documents may reach the USCIS office (Vermont) before Feb 18th but since Feb 16th, 17th, 18th being holidays – the officer may only receive it on Feb 19th.

    Is this petition still valid? will this get rejected straight away? How is the unlawful presence calculated in this case?

    Thanks.


    • Anil Gupta
      Anil Gupta 15 Feb, 19 at 10:59 pm

      You have not clearly mentioned about what application is currently pending and why have you applied for one more if current application is already pending.

      Please share complete detail to help you with meaningful answer.


      • Vikas
        Vikas 16 Feb, 19 at 9:36 pm

        Hi Anil,

        Sorry about that, I applied a second petition with another client just in case the first one gets denied, which is in the decision pending status (expected of Feb 19). But while filing the second petition as 18th is a holiday the office might only receive it on 19th. So I am wondering whether they will consider it on the first place.

        Vik.


        • Anil Gupta
          Anil Gupta 17 Feb, 19 at 9:24 am

          Your H1B petition will be received by USCIS after your current i94 has expired. In that case, your current pending H1B application will become a bridge application.
          Bridge means that the result of current pending H1B application will also affect the new H1B application’s result too.


          • Vikas
            Vikas 17 Feb, 19 at 10:04 am

            Hi Anil,

            Thank you for the reply, you mean to say that if there is a denial on my previous petition, then that denial is also applicable to the new petition with new LCA? And should I stop working immediately after the decision on the first petition?

            Vik


            • Anil Gupta
              Anil Gupta 17 Feb, 19 at 12:26 pm

              As per USCIS rule, if your bridge petition is denied, all other subsequent petition can be denied and will be denied.
              We have seen approvals too in case of bridge petitions but chances are very high for denial.

              it is basically your luck if you file after i94 expiry.


  3. Arshia
    Arshia 11 Feb, 19 at 8:04 am

    Hi Anil,

    I am on L2 visa and my I-94 was set to expire on Nov 19, 2018 ( per my old passport expiry date).

    I got my new passport and then i filed my L2 visa extension just before i-94 expiry – got the receipt for Nov 16, 2018.. Got the USCIS approval decision effective 1/1/2018. It has the new i-94 card effective from Jan 1, 2019.

    Do i still need to get the online record for i-94 corrected? It shows my old i-94 expiry date.

    Thanks!


    • Anil Gupta
      Anil Gupta 11 Feb, 19 at 8:04 am

      No need to get online CBP i94 record corrected explicitly.
      Your new paper based i94 from USCIS is sufficient to prove your legal status wherever you may need.


  4. Lavin
    Lavin 10 Feb, 19 at 12:25 pm

    Hi Ankur, please help me out in my situation
    My I94 expires on 03/21/2019
    My current visa H1B expires 03/21/2019
    My new Visa H1B I have applied on 09/19/2018 and I have already started working with new employer, but still I have not got any update from USCIS.

    My question is if
    1. I continue to work after 03/21/2018 and later on if I get rejection what will be my status from 03/21/2019 to date I get rejection.
    2. What are my options, any suggestion. I can switch to H4 but I don’t want to loose my H1B.


    • Anil Gupta
      Anil Gupta 11 Feb, 19 at 8:04 am

      1. Your status from i94 expiry date to date of transfer denial will be ‘period of authorized stay’.
      The status will be ‘unlawful presence’ starting the date of denial.

      2. Once your H1B is denied after i94 expiry, you cannot stay in USA.
      You should leave USA and then apply for H4 visa and re-enter USA if you want to convert to H4.


  5. Ankur
    Ankur 28 Jan, 19 at 8:51 pm

    Hi My I 797 expires on 3rd Feb and I 94 is valid till 13 Feb, if my employer files the extension petition on 2nd Feb (some internal issues and they can file on 2nd Feb only), will I able to work after if receive recipt number after 3rd Feb but Before 13 th Feb


    • Anil Gupta
      Anil Gupta 9 Feb, 19 at 10:11 am

      Yes, you can work.


      • Ankur
        Ankur 9 Feb, 19 at 10:42 am

        Thanks for fast response. So if they receive the recipt number say on 6th Feb, but I can still work on 4th and 5th (say) I dont have to stay out of client office.


        • Anil Gupta
          Anil Gupta 10 Feb, 19 at 12:26 pm

          Yes, you can work.


          • Ankur
            Ankur 11 Feb, 19 at 8:12 am

            Thanks.


  6. Raghav
    Raghav 14 Jan, 19 at 9:47 am

    Hi ,

    My employer applied for my h1b visa extention on 28th December and my visa is getting expired on 31st december.

    Though they have applied visa extention , the receipt is yet to be received.

    Is it legal to stay after expiry even though i don’t have the receipt?

    Please answer.

    Thanks!


    • Anil Gupta
      Anil Gupta 14 Jan, 19 at 10:04 am

      This is too close to the end date. The date to consider is your i94 expiry date in this case.
      When is your i94 expiring?


      • Raghav
        Raghav 9 Feb, 19 at 10:03 am

        Same as I 797 expiry- 31st december 2018


        • Anil Gupta
          Anil Gupta 9 Feb, 19 at 10:13 am

          Wow…that’s like applying on the last minute and that too in holiday season. Not sure why people take these kind of risks.
          Anyway, your receipt should be generated before Dec 31 and you can stay in US.

          Just make sure that your receipt gets generated. Your employer attorney will receive the information about receipt.


          • Raghav
            Raghav 9 Feb, 19 at 10:44 am

            Thanks for the Info!! Need to follow up with my employer now.


  7. Suryadeep Das
    Suryadeep Das 14 Jan, 19 at 9:47 am

    Question : How can you be in ‘Period of Authorized Stay’?
    Answer point #4 – Specifically, for H1B, this waiting period is maximum of 240 days starting after i94 expiry.

    My I94 expired on June 10, 2018. I got the H1B Extension receipt on May 21, 2018. But still now (Jan 11, 2019) I have not received any decision from USCIS. My 240 days is going to end on Feb 05, 2019. Can I stay after Feb 05. What will happen if I stay after Feb 05?


    • Anil Gupta
      Anil Gupta 14 Jan, 19 at 10:04 am

      You can stay in US after 240 days of i94 expiry but CANNOT work.


  8. Guesto
    Guesto 6 Oct, 18 at 8:54 pm

    Thanks for your reply.
    To check if Employer A withdrawn or not i am checking on USCIS website with my old case number and it doesn’t show anything like revoked or withdrawn. Usually from my past experience My ex employed don’t do withdrawal. so considering they haven’t withdrawn it.
    My Current employer or their attorney does not say anything about not working or illegal status to me.
    USCIS is doing all communication with employer/attorney. Is USCIS is expecting Visa holder to have all this VISA knowledge


  9. Guesto
    Guesto 5 Oct, 18 at 9:34 pm

    I have valid H1B stamp and I94 from Employer A, recently I changed employer and H1B transfer from employer B got rejected. Am i legal to stay in USA? am i legal to work with employer B while they are refiling H1B with some modification?


    • Anil Gupta
      Anil Gupta 6 Oct, 18 at 5:21 am

      H1B Stamp is not relevant here.
      Has your Employer A withdrawn your earlier H1B?
      Once your H1B transfer is denied, you are accruing ‘Unlawful presence’ from the date of denial. It is not legal to stay in US.

      You cannot work for this employer unless the petition is finally approved or a new one if filed and is pending.
      You can go back to work for employer A if they have NOT withdrawn their H1B already.


  10. Ravi
    Ravi 21 Sep, 18 at 5:50 pm

    Hello. My H1B will expire on Sept 30, 2018. Current employer A filed for H1B extension on Sept 1, 2018 and is currently under RFE. We have to reply to RFE before December, 2018. Now my question is can employer B file for an H1 transfer after Sept 30, 2018 i.e, after my I-94 expires and when current petition is under progress. ?