Unlawful Presence FAQs

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

Unlawful Presence for Minors

Authored on: Thu, 11/15/2018 - 10:56

Question

My son’s I-94 and visa are expired in June. We have applied for I-539 for extension in October. Will he be granted the extension.

Answer

Watch the Video on this FAQ: Unlawful presence for minors

Video Transcript

For a child under the age of 18 until they hit 18 there is no unlawful presence. They are only out of status. More...

 



Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

H-1B or Other Status Denied - What is my Status?

Authored on: Wed, 02/14/2018 - 11:26

Question

My I-94 expired on Dec 13th last year. Company filed for extension but RFE....now i will be laid off on Feb 9th and my company will not file for RFE response. How many days do i have to leave the country? Do i need to leave immediately on Feb 9th or can i leave by Feb 13th or 14th ? Will 5 days of out of status impact my future applications ? Also another company has offered me a job. If they file for H1B do they have to do it after I leave the country or can they start it and i can leave in between and do Counselor processing?

Answer

Watch the Video on this FAQ: H-1B or other status denied - what is my status?

Video Transcript

Basic Concepts to be in Status

To be in Status means you got the right kind of I-94. For example, if you are on H-1B and you have got an H-1B and I-94 which is unexpired and a proper approval from the USCIS to work for that employer at that location and you get paid and you are doing the work that you are supposed to be doing. So Status is a combination of immigration permissions as well as the work you do in the context of H-1B. In the context of F-1 it is the study that you do, so you could have an F-1 approval on paper, but you are not attending school, you are out of status or you could have an H-1B approval with an unexpired I-94 but you are not approved to work at the location you are working.

Therefore, it is a mixture of immigration permissions and the activity which is permissible and expected under the immigration permissions.

Then comes unlawfully present. This is a very complicated concept. Unlawful presence is dangerous because 180 days of unlawful presence will make you ineligible to enter the United States for three years. One year of unlawful presence will make you ineligible for 10 years. Now typically the unlawful presence begins with I-94 expiration or a finding by the USCIS or by an immigration court if you are in proceedings in deportation etc... that you are out of status and unlawfully present. That's the date your unlawful presence will kick in. This is a very complicated concept.

So when you are not doing the activity or don't have the proper legal permissions you could be out of status and unlawfully present that's the third concept and the fourth concept is authorized period of stay. This is in between status. You are allowed to stay in the United States, but you cannot convert from one status to another, from authorized period of stay to status. An example: lets say you were on H-1 and you filed for I-485 Adjustment of Status you let the H-1B expire you working on EAD you are in an authorized period of stay. If you want to go back to H-1 you cannot do a conversion or a change of status from Adjustment of Status to H-1. You can get an H-1B approval, but to get this status you have to leave USA get a visa stamp and come back because authorized period of stay is not status. 

These are very important. Please share them with as many people as you can especially in today's environment when Trump administration is in my opinion illegally denying a lot of cases. More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Status and Unlawful Presence Questions in the Form DS-160

Authored on: Wed, 09/27/2017 - 07:27

Question

Having plans to travel to India in last week of Sept 17 and with my visa stamp on passport expiring on 1st Sept 2017, need to go for visa interview & when I am filling my DS-160, came across the question : Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa? Considering the above situation, could you please help with what to answer Yes/No. If Yes, what comments to be written in the EXPLAIN BOX .

Answer

Watch the Video on this FAQ: Status and unlawful presence questions in the form DS-160

Video Transcript

This is a very generic statement. Do not depend on this as the last word on the subject. Generally speaking, the following two or three rules should be kept in mind. First of all, if you are ever in doubt you are better off saying yes, I was out of status and yes, I was unlawfully present and let the consulate deal with that issue. If you are not in fact not out of status and you are not unlawfully present there is no issue, but if you were out of status or lawfully present and you don't reveal that it can be construed to be fraud or misrepresentation which then becomes a permanent bar from entering the United States. It is a very painful situation. If you tell the truth, no issue.  More...

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.