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

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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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