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What is the Difference Between "Unlawful Presence" and Being "Out of Status"?

fountain pen on top of immigration papers

In common terms, "unlawful presence" generally means that a person has entered the United States illegally and remains here illegally. By contrast, "out-of-status" generally means that a person entered the United States legally, but has remained illegally after the expiration of their visa or under other conditions that violate their visa. But, technically and legally, with some exceptions discussed below, being "out-of-status" is a form of unlawful presence and can have consequences for a person's ability to leave and re-enter the United States and on a person's ability to obtain the status of a lawful permanent resident.

As discussed here, if a person accumulates more than six months (but less than a year) of unlawful presence, that person is barred from entry in the United States for three years. If more than a year of unlawful presence is accumulated, then the bar to entry is 10 years. It is important to note that these consequences, the three or ten year bar, are triggered upon departure.

For persons entering the United States illegally, every day is considered a day of unlawful presence. For persons who entered legally, they are generally provided with a Form I-94 which is an Arrival/Departure Record. Many Form I-94s will list a specific date when the person is required to leave. Typically, days of unlawful presence begin to accumulate if the person remains in the United States beyond the date listed on the Form I-94. However, some Form I-94s are listed with a duration of status (rather than a specific date). For example, those admitted for academic study are admitted for the duration of the academic program or course of study (D/S). Unlawful presence does not begin to accumulate until after the duration of status expires for the program, course of study, temporary work assignment, etc. Note also that many such programs have grace periods. Unlawful presence does not begin to accumulate during those grace periods.

Exceptions for Those Who Entered Legally

There are some exceptions when remaining beyond the expiration of a visa will not accumulate days of unlawful presence. These exceptions include the following individuals:

  • Asylum seekers while nonfrivolous asylum applications are pending
  • Minors: Children do not accrue unlawful presence while they are under age 18.
  • Family unity beneficiaries
  • If a person qualifies as a battered spouse or child
  • Qualified victims of severe forms of trafficking
  • People who have filed a non-frivolous extension or change of status, and that application is pending. In these cases, unlawful presence counts from the date of the decision, not while the application is pending.

Contact Yekrangi & Associates Today

For more information, contact the Orange County Immigration Attorneys at Yekrangi & Associates today. You are not alone and we will fight for you. Yekrangi & Associates works to meet a higher standard. Our first goal is your satisfaction. Contact us at (949) 478-4963 to schedule a consultation or complete our convenient “Get Your Consultation” form here. We are located in Irvine, California.

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