USCIS Lawful Status vs Out-of-Status
You are expected to obey the rules of the visa that you have used to enter USA to be designated with ‘Lawful status’. In addition, your i94 should have not expired.
How can you get Out of Status in USA?
You enter USA with H1B visa for employer A, and work on a specific job profile. If you keep working for employer A for the designated job and follow all other rules as laid out for H1B, you are considered in ‘Lawful status’.
Similarly if you used H4 visa to enter USA, you are expected to NOT work unless you have acquired H4-EAD (work authorization).
- 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.
- If your i94 expires and you have still not filed for i94 extension or have not left the country, you are considered out-of-status’ while evaluating your ‘lawful status’.
USCIS Period of Authorized Stay
This comes into picture if your visa or i94 has expired. If you have already filed for a valid extension of your visa or i94 extension before any of them expired, and the decision is still pending with USCIS, you are considered ‘out-of-status‘ but in ‘period of authorized stay‘.
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 of ‘out-of-status‘ (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.
How can you be 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 maximum of 240 days starting after i94 expiry.
USCIS takes a decision on July 30:
Approves: Your ‘out-of-status’ (and subsequently ‘Period of authorized stay’) from Feb 1 to July 30 is automatically converted to ‘Lawful status‘.
Rejects/denies: Your ‘out-of-status’ (and subsequently ‘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 for 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‘.