Foreign nationals must always be mindful of maintaining lawful status while in the United States. It is important to understand the concepts of “lawful status”, “period of authorized stay”, and “unlawful presence”, especially how they differ and impact an individual’s immigration status.
Lawful nonimmigrant status allows temporary stay and possible employment authorization to a nonimmigrant in the United States. Lawful status is determined by the individual’s I-94, which can be issued by the U.S. Citizenship and Immigration Service (USCIS) or the U.S. Customs and Border Protection (CBP). An I-94 determines how long the individual can remain in the United States, which visa classification the individual was admitted it, and when he/she should request a change of status, extension of status, or depart. To put it simply, the nonimmigrant must exit the United States on or before the I-94 expiration date or timely file an application or petition to extend or change nonimmigrant status. If not, the individual will be considered out of status.
However, the I-94 is not the only factor in determining lawful status. Lawful status is designated by an unexpired I-94 plus compliance to the terms and conditions of his/her visa classification. For example, an individual holding an H-1B visa must maintain status by working for his/her H-1B employer. Failure to comply with the assigned visa classification will be considered a failure to maintain status, and therefore, the foreign national will be out of status.
Period of authorized stay
Period of authorized stay by the Attorney General, also known as period of authorized stay or POSABAG, grants a nonimmigrant a period of time which he/she can remain in the United States even though the individual may not be holding lawful status. This period of authorized stay is only granted when a request to change or extend status is filed while the individual is in a valid nonimmigrant status. The most common circumstance in which period of authorized stay applies is when an individual timely files an application or petition to change or extend nonimmigrant status before the I-94 expiration date but the I-94 subsequently expires while the application or petition is pending with USCIS. Once the I-94 expires, the nonimmigrant falls out of status, but since an application or petition was timely filed before losing status, the individual remains in a period of authorized stay.
This period of authorized stay continues until USCIS makes a final decision on the timely filed application or petition. Once USCIS approves of the nonimmigrant’s application or petition, the decision has a retroactive effect, curing the period of time in which the individual was not holding lawful status. Keep in mind, a period of authorized stay is not the same as lawful status. Being in a period of authorized stay simply means that the nonimmigrant does not accrue unlawful presence despite technically being out of status.
Unlawful presence is when a nonimmigrant is physically present in the United States after lawful status or a period of authorized stay has expired. Unlawful presence occurs when an individual remains in the United States beyond the expiration date of his/her I-94 without a pending application or petition to change or extend status. This results in the accrual of unlawful presence until the individual departs the United States. An individual who is unlawfully present in the United States is also out of status; however, an individual who is out of status is not always unlawfully present.
If an individual has a timely filed and pending application or petition before his/her I-94 expired, then despite being out of status, the individual is in a period of authorized stay. This essentially tolls the accrual of unlawful presence until a final decision is made by USCIS on the individual’s application or petition. However, if USCIS ultimately denies the application or petition, then the individual begins accruing unlawful presence from the date of the denial and must leave the United States to avoid triggering any immigration issues.
Unlawful presence carries with it severe penalties that can be triggered once a nonimmigrant leaves the United States. It can automatically invalidate the nonimmigrant’s visa stamp and trigger the inadmissibility bar once the individual leaves the United States. For example, unlawful presence of more than 180 days triggers a three-year bar once the individual leaves the United States. Inadmissibility comes to play once an unlawfully present individual departs the United States. So, if an individual is out of status, but is not unlawfully present, then departure from the United States will not trigger any inadmissibility bar.