What is "Status"?

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There are two important components within the concept of "status:" First, there is classification under which the person is admitted (i.e., student, visitor, temporary worker, etc.); and, Second, there is the duration (length) of the stay permitted.

Both of these components may be modified by Citizenship and Immigration Services. A person admitted in one status may seek a change of status into a new classification (such as from F-1 to H-1B1). Also, the duration of a person's stay may be extended by the USCIS. Again, the validity period of a visa has nothing to do with the duration of a nonimmigrant visitor's permitted stay.

"Unlawful Presence" vs. "Out of Status"

A nonimmigrant visitor violates his or her status if any of the following occur:

1. the person remains beyond the expiration date of the status granted;
2. engages in employment without specific authorization; or,
3. engages in an activity that is not consistent with the status in which the person was admitted.

A person who violates his or her status becomes removable as of the moment the violation takes place. If the USCIS becomes aware of such a violation of status they have the right to file an order to show cause re: removal against the person. If the violation of status is then proven at a removal hearing, the person will be ordered removed. This is in contrast to the newly defined "unlawful presence" classification that resulted from the 1996 Immigration Act. Effective April 1, 1997, a person who remains in the United States in "unlawful presence" for more than 180 days and then departs voluntarily, must remain outside the U.S. for three years before being eligible to immigrate. A person who remains in "unlawful presence" for more than twelve months must remain outside for ten years.

The term "unlawful presence" is not synonymous with "in violation of status." Many people who violate their nonimmigrant status are "in unlawful status" for purposes of this new provision in the law. Generally speaking, a nonimmigrant is not "in unlawful presence" unless he or she has remained longer that the period of stay explicitly granted on his or her form I-94. Even if the person worked without authorization, they are only in "violation of status" not "unlawful presence." In the case of a student with "D/S", he or she will not be considered in "unlawful presence" even if the student stops going to school, works without permission, or otherwise violates status. The exception to this rule is in a case where the USCIS has told the person that they are in unlawful status. At that point, and only at that point, does the person begin to accrue consecutive days in "unlawful presence."

"grace period"

One of the more persistent Internet myths is that the law provides a "grace period" for nonimmigrants to switch from one nonimmigrant classification to another. It does not.

If an H-1B worker ceases working for the sponsoring company, irrespective of whether it is by resignation or termination, that worker's H-1B status terminates immediately. The law does provide a ten day period for the worker to leave the country before going into unlawful presence, but this is not a grace period for the filing of a new nonimmigrant petition or application.

Automatic extensions

There are two types of automatic extensions of status provided in the law. The first involves nonimmigrants with working type visas. If a person in one of these classifications applies for an extension of stay, before the expiration date of his or her current stay, then the law provides for an automatic 240 day extension of stay and extension of work authorization (8 CFR 274A).

The second is not really an automatic extension, but rather a formal policy of the USCIS If any nonimmigrant files for a change of status or an extension of stay, prior to the expiration of their current authorized stay, they are permitted to remain in the U.S. in lawful status until the time they requested has expired or a decision is reached by the USCIS - whichever occurs first.