What is Out of Status in USA? Is Visa extension denial an 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.
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Your i94 expiry date governs your legal stay time in the USA. You are in lawful status if your i94 has not expired and you are staying in the US as per your visa conditions.
Your Visa stamp in your passport is only required to enter the USA. Once you have entered the USA, your i94 defines how long you can stay.
The USCIS-approved i797 petition for some visas like H1B, L, etc is required to get a US visa stamp. A USCIS petition is not required for visas like B1/B2, H4, or L2.
This article will discuss:
What is Out of Status?
‘Out of status’ happens when you are not able to stay in the USA as per the terms and conditions of the visa type printed on your i94.
See this sample i94 which shows ‘Class of admission’ as ‘H4’. This means that you have to stay in the US and abide by the H4 visa’s terms and conditions.
#1 B1-B2 Visitor or Business visa
You are visiting the USA using a B1 visitor visa and are staying with your kids. Your status is printed on your 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 an H1B visa approved for employer A. Employer A is looking for a client project for you and has not started your payroll after you entered the 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.
H1B employers are required to pay you a salary on ‘bench’ time. It does not matter if you are waiting for a new client project.
#3 H4 Visa Status Violation by Working without H4 EAD
If you used an H4 visa to enter the 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 an 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 rules before your status has not been explicitly changed (by you) using the ‘Change-of-status’ application, you are considered ‘out-of-status’ for the period you broke the rule.
#6 Staying in the USA after the i94 expiry
You should file your visa extension before your i94 expiry to avoid status violation and stay in the USA.
Period of Authorized Stay
You are in a ‘period of authorized stay‘ if you filed an extension of stay with USCIS before your i94 expired.
USCIS’s period of authorized stay allows you to stay in the USA while your application to extend status is pending.
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 the USCIS decision is automatically converted to ‘Lawful status‘.
Please note that you have to abide by the USCIS decision as and when it happens. Other rules 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.
Unlawful Presence
If you are neither in ‘lawful status’ nor in ‘period of authorized stay‘, then you are in ‘Unlawful presence‘.
Check my 240 day Legal status
FAQ
You are in the period of authorized stay if your extension is pending with USCIS and your i94 has expired.
Example:
Your H1B and i94 expire on Jan 31. You file an H1B extension on Jan 1 of the same year i.e. before it expires.
The i94 and visa expire but USCIS has still not taken any decision.
You are counted as ‘out-of-status’ but in a ‘period of authorized stay’ until USCIS makes a decision.
Specifically, for H1B, this waiting period is 240 days starting after the i94 expiry.
USCIS decides on July 30:
Approval: Your Period of authorized stay from Feb 1 to July 30 is automatically converted to ‘Lawful status‘.
Rejection / Denial: Your Period of authorized stay from Feb 1 to July 30 is counted as a ‘period of authorized stay’ only as explained below.
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 by Feb 1.
You filed an H1b extension before Jan 31 and USCIS rejected your petition on July 30. Your stay in the US from July 31 onward is counted as an ‘Unlawful presence‘.
You can be placed in removal proceedings which means deportation.
It will be more difficult for you to obtain any future US visa.
It is possible that your H1B visa “stamp” is automatically invalidated.
If you stay for more than 180 days, you can be barred for 3 years from returning, when you actually leave.
If you stay for more than 365 days, you can be barred for 10 years from returning, when you actually leave.
Yes, your Dropbox or visa interview waiver eligibility will be affected if you have overstayed in the US or were ‘out of status’.
