When am I Out of Status in USA?

Anil Gupta  18 Mar, 19      95  USA

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?

  1. 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’.

  2. Similarly if you used H4 visa to enter USA, you are expected to NOT work unless you have acquired H4-EAD (work authorization).

  3. 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.
  4. 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’?

  1. Your H1B and i94 expires on Jan 31. You file H1B extension on Jan 1 the same year i.e. before it actually expires.

  2. The i94 and visa expires but USCIS has still not taken any decision.

  3. You are counted ‘out-of-status’ but in ‘period of authorized stay’ until USCIS takes a decision.
  4. Specifically, for H1B, this waiting period is maximum of 240 days starting after i94 expiry.
  5. USCIS takes a decision on July 30:

    1. Approves: Your ‘out-of-status’ (and subsequently ‘Period of authorized stay’) from Feb 1 to July 30 is automatically converted to ‘Lawful status‘.

    2. 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.

When am I out of Status in USA?
When am I out of Status in USA?

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’?

  1. 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.

  2. 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‘.

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Old Comments

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  1. 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?

  2. 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   15 Mar, 19 at 7:58 pm

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

  3. 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.

  4. 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?

  5. 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.

  6. 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..

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

    Hi Anil,
    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.

    • 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.

  8. 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?

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