Risk of being Unlawfully Present and Out of Status

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Risk of being Unlawfully Present and Out of Status

Why is it to be Unlawfully present?

  •  Found in INA §212(a)(9)(B)(ii) 
  • This is when a person remains in the United States after the person’s authorized stay ends or the person is in the United States without inspection or admittance or parole. 
  • The period of authorized stay is determined by the I-94 not the visa in your passport. You can retrieve your I-94 information on https://i94.cbp.dhs.gov/I94/#/home#section
  • Unlawful presence may be tolled by changing your status or filing for an extension of stay, before your authorized stay expires.

What is it to be Out of Status (Unlawful Status)?

  • When a person has violated the terms of the status accorded him by the USCIS e.g. person on F1 engaging in unauthorized employment. 
  • When a non-immigrant individual stay beyond the expiration date on I-94 or the I-797, if extension of stay is granted.
  • Generally, a person begins to accrue unlawful presence once they are out of status 
  • Important to discuss the specifics of your case with an immigration attorney to determine whether or not you are out of status

Consequences / Risk of being unlawfully present and out of status?

  • Subject to a 3 year bar from entering into the United States: This occurs after a person remains unlawfully present for more than 180 consecutive days but less than a year.
  • Subject to a 10 year bar from entering the United States: This occurs after a person remains unlawfully present consecutively in the US for more than one year.
  • These two bars will be triggered when a person voluntary departs the United States prior to deportation or if the person is involuntarily removed from the United States.
  • Inadmissibility to the United States
  • Unable to obtain visa or be admitted to the United States as a permanent resident (exceptions are: immediate relatives of US Citizens, persons granted a waiver by the Attorney General, INA 245(i))
  •  Can be removed from the United States


  • Understand the terms of your visa and the duration of your stay.
  •  Seek counsel from only licensed attorneys who practice immigration law.
  • Apply for your extension/change of status early in the process.


The above is for informational purposes only; and should not to be substituted for competent legal counsel from a licensed attorney. Immigration Laws are apt to change thus, the information presented may not reflect the current state of the Immigration and Nationality Laws of the United States. Ezimmigrationhelp.com is not a law firm, the reading of this article does not create a legal relationship.

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