The concepts of "unlawful presence" and "out of status" have significance for adjustment of status applicants. With certain notable exceptions, all applicants for adjustment of status must show that they have not violated their nonimmigrant status prior to filing for adjustment 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.

If any of these circumstances are present, then the nonimmigrant is deemed to be "out of status."  This is an absolute bar to adjustment of status, irrespective of the applicants other merits.

There are, however, three notable exceptions to this rule - applicants who may apply for an receive adjustment of status notwithstanding prior nonimmigrant status violations:

1. "Immediate relatives" (parents, spouses, and unmarried minor children) of United States citizens.
2. Employment based applicants who have a total of less than six months of status violations since their most immediate past entry into the United States prior to filing for adjustment of status (Section 245(k)).
3. Adjustment applicants with priority dates earlier than April 1, 2001 who also pay a $1,000 fine (Section 245(i)).

"Unlawful presence" is defined as any time spent in the United States beyond an ordered departure date. Most commonly, this is what is known as "overstay" time. That is, time spent beyond the departure date shown on the nonimmigrant's form I-94 arrival/departure record. In the alternative, if the nonimmigrant has been given a written order from the CIS to depart by a specific date, then any time spent beyond that date constitutes "unlawful presence."

"Unlawful presence" becomes significant when someone remains in it continuously for more than 180 days and then departs voluntarily. In such a case, that person 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 C.I.S. 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."

For those who began accruing it before filing for adjustment of status, "unlawful presence" does not stop accruing with the filing of adjustment of status. A person who went into "unlawful presence" a month before filing for adjustment of status would become subject to the three year bar on return just five months after filing for AOS. If this person then went abroad, using advance parole, he or she would not be allowed to return for three years.

It is very important to understand that if an applicant for adjustment of status is in lawful status when he or she files for AOS, the subsequent expiration of their I-94 date will not put them into "unlawful presence". This is something that can only begin prior to filing for AOS.