Immigration Information Article: Maintaining Status and "Unlawful Presence"

Maintaining Status and "Unlawful Presence"

The text below is taken from section 30.1 of the CIS Adjudicator's Field Manual, which deals with the subject of maintaining lawful status and "unlawful presence." This is not "law" in the sense that it carries any particular authority. Rather, it is an explanation of the law, as the law is understood and interpreted by the CIS. This information is provided so that readers may understand the CIS view on this subject. Readers must understand that only the courts have the final say as to what "the law" is or is not.

30.1 Maintaining Status.

(a) General. Section 101(a)(15) of the INA specifies various classes of persons admissible to the U.S. as nonimmigrants. Requirements for admission in each category are discussed 8 CFR 214 and in Chapter 15.4 of the Inspector’s Field Manual. This chapter will discuss general requirements for maintaining status, changing status, and obtaining extensions of stay. Requirements for maintaining and changing status which apply only to specific nonimmigrant classes are discussed in Chapters 31 through 37 and Chapter 15 of the Inspector’s Field Manual. Matters relating to parole of aliens are contained in Chapter 16 of the Inspector’s Field Manual, and matters relating to Temporary Protected Status are contained in Chapter 38 of this manual.

(b) Activities Consistent with Status. A nonimmigrant may engage only in activities consistent with his or her status. In general, the filing of an application for a different status or even the approval of a petition (for example an I-129 petition to accord H, L, O or P status), does not constitute authorization to engage in the activities permitted in the new status. (However, under certain conditions, an alien who is already in H-1B status may commence working for a new employer upon the filing of a new petition by that new employer.) With regards to a change of status applicant, it is only the formal approval of the change of status application by USCIS that constitutes authorization to engage in activities consistent with that new status. An alien who, prior to approval of a change of status, engages in activities not consistent with his or her present status is at risk fo being found to be in violation of status in the event the application is denied, although approval is often retroactive to the date of the original application [See Matter of Teberan, 15 I&N Dec. 689 (BIA 1976), and Matter of Dacanay, 16 I&N Dec. 238 (BIA 1977)]. However, in accordance with 8 CFR 248.1(c), an alien may be granted a change of status to that of F-1 or M-1 student even though he or she may have begun attending the school even before the application was submitted.

There is a significant body of information available concerning what activities are or are not appropriate for particular visa classifications. The B-1 and B-2 classifications have historically been the object of many such interpretative discussions. If you have any questions concerning particular activities, you should consult available resources including: 8 CFR 214.2; Chapter 15.2 of the Inspector’s Field Manual; the Department of State’s Foreign Affairs Manual (FAM), and precedent decisions.

(c) Voluntary Departure vs. Nonimmigrant Status. Voluntary departure is not a nonimmigrant status. It is, however, regarded as an authorized period of time for purposes of section 212(a)(9). Accordingly, time spent in voluntary departure does not add to an alien’s unlawful presence. For example, a B-2 nonimmigrant files for an extension after his stay expires. The extension is denied and the alien is granted 15 days of voluntary departure. In calculating unlawful presence, count as unlawful the days between the expiration of the B-2 status and the issuance date of the Form I-210 granting voluntary departure, as well as any time after the voluntary departure expired, but do not count the 15 day voluntary departure period itself. Voluntary departure is discussed in 8 CFR 240.25.Although voluntary departure time is not counted when calculating unlawful presence, an alien who has been given a period of voluntary departure is not considered to be maintaining status for purposes of receiving an extension or status change [See Matter of Lennon, 15 I&N Dec. 9 (BIA 1974).].

(d) Unlawful Presence under Section 212(a)(9)(B) of the Act.

	(1) Counting of Unlawful Presence for Nonimmigrants. An alien who remains in the United States beyond the authorized period of stay is unlawfully present and becomes subject to the 3- or 10-year bar to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants:
		(A) Nonimmigrants Admitted until a Specific Date. Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the authorized period of admission expires, as noted on Form I-94, Arrival/Departure Card. (B) Nonimmigrants Admitted Duration of Status (D/S). Nonimmigrants admitted to the United States for D/S begin accruing unlawful presence on the date USCIS finds a status violation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regarding voluntary departure as a period of stay authorized by the Attorney General.
	(2) Authorized Period of Stay. USCIS has also designated the following as authorized periods of stay: Voluntary departure; Refugee status; Asylee status; Grants of withholding or deferral of removal under the United Nations Convention Against Torture; Legalization and special agricultural worker applications for lawful temporary residence which are pending through an administrative appeal; Grants of withholding or suspension of deportation, or cancellation of removal; Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202 (b) of Pub. L. 99-603 through administrative appeal; Grants of Temporary Protected Status and Deferred Enforced Departure; Applications for adjustment of status under section 245 of the Act (including section 245(i)), and registry applications under section 249 of the Act, if properly filed with INS or USCIS. The period of stay authorized by the Attorney General continues if the application is denied and renewed in proceedings, through review by the Board of Immigration Appeals (BIA). The alien must, however, be eligible to renew the denied application in proceedings and have a legal basis for renewing that application; and Certain pending applications for extension of stay or change of status. See sections (d)(3) and (d)(4) of this chapter. (3) Requirements for Authorized Period of Stay with Respect to Pending Change of Status and Extension Applications.
		(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1(c)(4) and 8 CFR 248.1(b). (B) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and (C) The change of status or extension application has been pending with INS or USCIS for more than 120 days after the date the I-94 expired.
	(4) Effect of Decision on Unlawful Presence and Tolling.
		(A) Approved Applications. If USCIS approves an E/S or C/S application, the alien will be granted a new authorized period of stay, retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the alien was admitted (or to which the alien had previously be changed) pursuant to 8 CFR 214.2. No unlawful presence accrues. This applies to aliens admitted until a specific date and aliens admitted D/S. (B) Denied applications.

		(i) Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment. If the C/S or E/S application is denied because it was untimely or frivolous, or because the alien engaged in unauthorized employment, any and all time after the Form I-94 expiration date will be considered unlawful presence, provided the alien was admitted until a specific date. If, however, the alien was admitted D/S, unlawful presence begins accruing on the date of the Service’s decision. (ii) Denial of Late Applications. If the application was filed late and was denied, unlawful presence begins accruing on the date the I-94 expired, regardless of the reason for denial. For aliens admitted D/S, unlawful presence begins accruing on the date of denial.
(5) Voluntary Departure as an Authorized Period of Stay. USCIS has designated voluntary departure as an authorized period of stay. However, any unlawful presence that accrued before the date the voluntary departure was actually granted is not eliminated. And, if the alien does not make a timely departure, the counting of unlawful presence resumes on the day after the required departure date and continues on until the alien finally departs. Moreover, the alien becomes subject to civil penalties and is ineligible for any further voluntary departure or other forms of relief, such as adjustment of status, registry, and cancellation of removal. (6) Effect of Departure.
	(A) Applicants for Nonimmigrant Visas. Date certain nonimmigrants who file an application for change of status or extension of stay who depart the United States while the application is pending and subsequently apply for another nonimmigrant visa must establish, to the satisfaction of the consular officer, that the application was timely filed and that it was not frivolous. The requirement that the application was timely may be established through the submission of evidence of the date the previously authorized stay expired, together with a copy of a dated filing receipt, a canceled check payable to INS or USCIS for the E/S or C/S application, or other credible evidence of a timely filing. To be considered non-frivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose. In determining whether an E/S or C/S application was nonfrivolous, DOS has instructed consular posts that it is not necessary to make a determination that INS or USCIS would have ultimately ruled in favor of the alien. If the consular officer finds that the alien qualifies for a visa in the same category as the visa classification that was sought in the abandoned E/S or C/S application, the consular officer may presume that the E/S or C/S application was not frivolous. The question then turns to whether the alien engaged in unauthorized employment before the E/S or C/S application was filed or while it was pending. Consular officers will determine this through the routine course of questioning. Consular officers may also review and consider evidence of an alternate means of support during the time in which the alien was not authorized to work. If the consular officer determines that the application was timely filed, non-frivolous, and that the alien did not engage in unauthorized employment, the alien is not subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i) of the Act. See Inspector’s Field Manual Chapter 15.15 for a discussion of the effect of the alien’s departure on section 222(g). D/S nonimmigrants who depart the United States while an application for change of status or extension of stay is pending generally do not trigger the 3- and 10-year bars under section 212(a)(9)(B)(i) of the Act, unless a formal finding of a status violation has been made, and the alien has not been granted any other authorized period of stay, such as voluntary departure. (B) Applicants for Admission at a Port of Entry (POE). When a date certain nonimmigrant files an application for change of status or extension of stay and departs the United States while the application is pending, officers at POEs should use the same procedures followed by consular officers to determine whether the application was timely and non-frivolous, and whether the alien engaged in unauthorized employment. If the extension application was timely and non-frivolous and the alien did not engage in unauthorized employment, the alien is not subject to the 3- or 10-year bar to admission. [See Inspector’s Field Manual, Chapter 15.15 for the applicability to section 222(g)].