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

Written by Anil Gupta
  By Anil Gupta - Updated on  1 May, 19
  125  

You are Out of status after i94 expiry. Unlawful presence starts after petition denial in USA
You are Out of status after i94 expiry. Unlawful presence starts after petition denial in USA

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‘.

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  1. Raj Kole
    Raj Kole 24 Mar, 19 at 8:53 pm

    Hi Anil,
    Need your input on Unlawful presence. As per my understanding from your article, If my 240 gets over on March 30th and if the extension gets denied on 10th April on USCIS website then 11th April onwards each day will be treated as unlawful presence in US.

    Question : I would need 4-5 days say till 15th April to sell and leave US, what affect will these 4-5 days have on my future travel to US on H1B (different project).
    What can be done as leaving US on the day denial is received is practically impossible.


  2. Sush
    Sush 22 Mar, 19 at 1:16 am

    My H1B expired in October 2018. I wanted to change status to H4 but also wanted to travel to India. So with the plan that I will go to India and apply for H4, we did not apply for change of status. However my trip got postponing because of my kid’s school and some other things. I know I am out of status. What is best thing for me to do now, go to India and apply for H4 or apply while I am in the USA? Please advise.


    • Anil Gupta
      Anil Gupta 22 Mar, 19 at 8:58 am

      You cannot apply for H4 COS now as your i94 has probably already expired. You should leave USA to avoid adding ‘unlawful presence’ time and get H4 stamp.

      You will have to give the reason of this overstay in your DS-160 in all your future applications.


  3. disquser
    disquser 18 Mar, 19 at 12:41 pm

    I am currently outside USA and working remotely. My I-797 is expiring tomorrow. Our legal team says they are waiting on a few confirmations before they file it and it will be done asap. This is to file an extension of H1B for the period of my stay outside USA so far. I have asked them what happens if there is more delay and not able to file it before I-797 expiry date and they replied that since I am outside USA, the I-797 date is no longer a legal deadline however they should be filing it asap.

    According to them I can continue working remotely even after the I-797 expiry date and they file the extension some time soon later. Is it so?


    • Anil Gupta
      Anil Gupta 18 Mar, 19 at 1:39 pm

      Your question about i797 extension and validity date from outside USA 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.


  4. arunkumar subramaniam
    arunkumar subramaniam 15 Mar, 19 at 1:38 pm

    Current visa is valid till 04/05/2019 ( but the actual max out is 06/10/2019) and I140 will be filed by 03/22 in Premium mode ,which i am expecting to get approved on 04/05/2019.My question is whether i can file my H1B extension after two weeks of 04/05 i.e sometime on 04/19/2019 with approved I140 to extend for longer stay or I can file before 04/05/2019 to recapture my two months of stay from 04/06/2019 to 06/10/2019 ?


    • Anil Gupta
      Anil Gupta 15 Mar, 19 at 7:58 pm

      Extension should be filed on or before i94 expiry and not visa stamp in your passport.


  5. Raghu
    Raghu 14 Mar, 19 at 9:52 pm

    My I-94 is expired on 20th December, 2018. Employer A has applied the extension on 10th December 2018. I have transferred my H1-B to employer B on 25th Jan 2019, on 20 Feb 2019 employer A revoked my H1-B extension. could you please confirm whether I am in out of status or it would be counted as Lawful Presence.


    • Anil Gupta
      Anil Gupta 15 Mar, 19 at 6:13 am

      You are in period of Authorized stay.


  6. Piyush Dubey
    Piyush Dubey 11 Mar, 19 at 8:14 am

    My extension is requested last Friday 8th March. My visa is expiring Wed, 13th Mar and i94 on 23rd Mar..
    I haven’t received receipt notice till now. My attorney says it may take 7-10 days to get receipt notjce.

    I know I can work once I receive receipt notice. But if I don’t get it, would I be able to work after Wed, 13th my visa expiry?


    • Anil Gupta
      Anil Gupta 11 Mar, 19 at 8:29 am

      I have added your question to our forum here and answered too because it is out of scope of this article.

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


  7. Pritee
    Pritee 11 Mar, 19 at 7:26 am

    need some help and guidance on immigration case.. here is the back ground

    1) H1b approved in 2016.-
    – visa stamped in early 2017.
    – came to US in July 2017
    – i94 date – (sept 2019)

    2) before coming to US ,he had a change in client.
    – Company filed his amendment
    – amendment approved in early 2018 while I was in USA
    – amendment petition validity March 8, 2019

    3) company applied for his EB1C I – 140 petition after amendment approval

    4) received I-140 approval in July 2018.

    5) company instead of filing h1b renewal filed his l1a petition in February 2019.

    6) now received a RFE for his l1a petition on 5th March 2019

    7) RFE response date is 30th May 2019

    Wanted to know what i needs to do, to avoid being out of status and how long he can stay in US with or without job?

    Any guidance would really help.


    • Anil Gupta
      Anil Gupta 11 Mar, 19 at 8:21 am

      I have added your question to our forum here and answered too because it is out of scope of this article.

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


  8. meh
    meh 10 Mar, 19 at 1:02 pm

    hi Anil, my husbands petition expires on march 17th 2019, (he is on L1a blanket visa), visa valid till 2021 jan. he has applied for extension in nov 2018 normal processig and waiting for decision. company is ready to file i-140 for gc process. suppose if extension is denied, and i-140 is pending what should i do for my legal stay..what about my i- 140 decision. will the filing be wasted.. can i apply for EAD and AP along with i-140? if i apply for ead and ap will it helps for my legal stay..please advise..


    • Anil Gupta
      Anil Gupta 10 Mar, 19 at 10:36 pm

      I have added your question to our forum here and answered too because it is out of scope of this article.

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


  9. Ashish Kumar
    Ashish Kumar 10 Mar, 19 at 9:55 am

    Hi Anil,
    Question-
    H4 I-94 expired and my employer forgot to extend. 10 days overstay and now it has been filed with uscis. Will it be now authorized stay since uscis received the application for extension?

    My employer suggested, all is well nothing to worry. And need not to leave.


    • Anil Gupta
      Anil Gupta 10 Mar, 19 at 10:30 pm

      Officially, extension should be filed before i94 expiry. The chances are high that extension will not be approved.

      Also, your H4’s status is “out of status” after i94 expiry if the application was indeed filed after i94 expiry.
      My suggestion is to leave USA and get H4 stamp from US embassy and do not rely on H4 extension in your case.

      It is not worth the risk to wait for H4 extension result which can take 5-6 months.


  10. Ann
    Ann 7 Mar, 19 at 8:29 pm

    I have applied for extension and received the receipt on 23rd March 2018. I work for a public school and they have made a regular application to USCIS for my H1B extension. My visa has expired on August 18th and I am on the 240 day period. What happens after the 240 days end? Will I still be considered an employee but given no salary as I await a decision from the USCIS? Are you allowed to stay in the country until they come to a decision? what are the implications?
    Should I pay for premium processing?


    • Anil Gupta
      Anil Gupta 7 Mar, 19 at 9:11 pm

      I have added your question to our forum here and answered too because it is out of scope of this article.

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



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