CHANGING YOUR STATUS AND EXTENDING YOUR STAY
When Are You Out of Status and When Do You Acquire Unlawful Presence?
Anyone who fails to maintain his or her nonimmigrant status is considered “out of status ” and is deportable. Examples of aliens who typically go out of status and are penalized for it are those who overstay the validity dates on their I-94 card or those aliens who enter the United States without being admitted or paroled. However, there are some situations in which aliens are considered out of status and are technically removable , but would not generally be placed in removal proceedings. For example, intending immigrants who are present in the United States while their Adjustment of Status applications are pending are in a period of stay authorized by the Attorney General. However, they are technically out of status and are subject to removal. While the BCIS does not generally remove adjustment of status applicants for being out of status, BCIS sometimes does take advantage of the fact that these applicants are removable. During the recent special registration interviews, for example, many adjustment of status applicants were placed in removal proceedings. BCIS had the authority to place these individuals in proceedings because they were technically out of status. In other words, if BCIS really wants to remove someone, they can use the fact that they are technically out of status as adjustment of status applicants in order to remove them. Being out of status as an adjustment applicant, in and of itself, is not generally enough to make the BCIS remove a person from the United States.
serif;">Another situation in which a person is technically out of status is when he or she applies for a change or extension of nonimmigrant status. An alien is technically out of status the moment the nonimmigrant status notated on his or her I-94 expires, even if he or she has filed a timely petition or application to extend or change status. However, during the entire pendancy of the application to change or extend status, the alien is in a period of stay authorized by the Attorney General, and aliens in most nonimmigrant statuses are permitted to continue working for up to 240 days during an application for extension of stay . Aliens who are in this period of authorized stay are still technically out of status, however, and are removable. But again, BCIS would not generally place an alien in removal proceedings while the he or she is in a period of authorized stay.
There are other consequences to being out of status besides being removable. For example, aliens who are out of status cannot extend their stay in the United States . They cannot adjust status to permanent resident while they are out of status . Out of status aliens cannot change status . In some cases, out of status aliens become subject to INA §222(g), which requires an alien to reapply for a visa at his or her home consulate before being readmitted to the United States. Following is a list of activities that could trigger 222(g):
1. Entering the United States without being admitted or paroled
2. Overstaying admission or parole
3. Failure to engage in activities required to maintain nonimmigrant status (e.g. if an L-1, H-1B, TN, or other employment-based category ceases to be employed, or if an F, M, or J nonimmigrant student fails to attend school full- time, he or she may be subject to 222(g)).
4. Engagement in activities inconsistent with one’s status. Following are some examples:
a. unauthorized employment;
b. work for an employer other than their sponsor;
c. arrest and conviction;
d. attending school while on a visitor’s visa;
e. working more hours than permitted on F-1 student status or changing schools without authorization; or
f. working after EAD (employment authorization document) expires.
This is not meant to be an exhaustive list of the possible consequences of being out of status. Other consequences may apply.
The consequences of being out of status are legion. Yet there are additional consequences to aliens who, in addition to being out of status, are also “unlawfully present” in the United States. When Congress passed the Immigration & Nationality Act of 1996 (the Act), it added the concept of “unlawful presence” to the Act. An alien is deemed unlawfully present if s/he “is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled. ” All aliens who are unlawfully present are also out of status, but not everyone who is out of status is unlawfully present. Therefore an alien who is unlawfully present can incur all of the consequences listed above for someone who is out of status. In addition, aliens who are unlawfully present are subject to 3- and 10-year bars from admission to the U.S. That is, any alien who is unlawfully present for over 6 months and then departs the U.S. will be barred from re-entering the U.S. for 3 years. Any alien who is unlawfully present for more than 1 year and then departs the U.S. will be barred from re-entering the U.S. for 10 years .
When Congress created the concept of “unlawful presence,” it recognized that when aliens apply for a change of status or extension of stay, those petitions or applications are rarely adjudicated prior to the expiration of the alien’s previously accorded status. A “tolling provision” was therefore incorporated into the Act to suspend accrual of “unlawful presence” for up to 120 days for aliens with pending change of status or extension of stay applications. Under the tolling provision, which is still in the law, there is thus a 120-day grace period during which an alien can lawfully remain in the United States while his or her change or extension of stay is pending .
Recent memos circulated by INS (now BCIS) have extended the 120-day tolling provision even further in light of increasing backlogs on adjudications. BCIS policy now allows aliens to remain in the United States during the entire pendancy of change of status or extension of stay applications. Unlawful presence now accrues only under the following circumstances:
1. If the application for change or extension of status was filed frivolously, for the sole purpose of staying in the United States longer, and does not have an arguable basis in law;
2. If the application to change or extend status was not filed prior to the expiration of the alien’s prior status; or
3. If the change or extension of status cannot be granted for any reason, unlawful presence accrues from the date of denial.
The conditions under which the above-noted consequences are triggered vary based on the particular situation in which an alien finds him or herself. For example, if an alien files a timely application for a change or extension of status and the application is not adjudicated before his or her I-94 expires, then he or she becomes “out of status” upon expiration of the I-94. If the application to change or extend status is approved, the validity period of the new status will be back-dated to the date on which the I-94 expired. Therefore the alien’s record with BCIS will not show that he/she was ever out of status. The lapse is “erased” for all intents and purposes. However, if the application to extend/change nonimmigrant status is denied, the alien continues to be out of status and furthermore begins to accrue unlawful presence on the date the denial notice is issued.
Under another set of circumstances, the “out of status” and “unlawfully present” designations apply differently. For example, an alien who is placed in removal proceedings while s/he has an unexpired I-94 card does not acquire unlawful presence until his/her I-94 expires OR the Immigration Judge determines that he alien is out of status. If the judge determines that the alien is out of status, the period of the alien’s being “out of status” is back-dated to the date on which the alien violated his or her status. However, unlawful presence is not back-dated to the date of the violation, and only starts upon the judge’s determination.
This is one of the most convoluted areas of immigration law. Anyone with particular questions about his or her case should consult with an immigration attorney.
