Falling Out of Status (Just How Out of Status am I?)

October 2000

Type of Problem How does it happen? What are the penalties?
Out of Status
(Violation of status)
  • Staying beyond expiration of I-94 card (if not admitted for Duration of Status, aka D/S)
  • Enrolled for less than full time
  • Not enrolled at all
  • Unauthorized employment
  • Not engaging in activity for which admitted
  • Not processing transfer on time
  • Not processing change of program on time
  • Staying beyond expiration of I-20 while still enrolled
  • Not processing J-1 extension on time
  • Staying beyond F or J grace period
  • Staying after employment ends (H, O, TN)
  • Other violations
  • Should leave the U.S. (or apply for reinstatement if available)
  • May not be employed (even on campus)
  • May not be granted any immigration benefits, such as OPT, extension, transfer, etc.
  • May not change status in the U.S.
  • May never adjust to permanent residence in the U.S. unless married to a U.S. citizen (some other exceptions may also apply)
Unlawfully Present
(3/10 Year Bar)
  • Staying beyond the end of date-specific I-94 card
  • If I-94 is date specific, unlawful presence days can also begin if and when an INS judge or adjudicator declares the person in violation of status
  • If I-94 is valid for Duration of Status (D/S), unlawful presence begins only if and when an INS judge or adjudicator declares the person in violation of status
Note: A person with a date-specific I-94 card, who files a non-frivolous application for extension or change of status, will not accumulate days of unlawful presence after I-94 expiration as long as the application is pending with INS.
  • After 180 days of unlawful presence, the person may not be readmitted to the U.S. for 3 years
  • After 365 days of unlawful presence, the person may not be readmitted to the U.S. for 10 years
Note: No days before April 1, 1997, will be counted. Days are generally not cumulative. Days are counted separately for each visit. Days before age 18 are not counted.
Overstay
(Voiding of visa)
  • Staying beyond the end of date-specific I-94 if entered with a visa
  • If I-94 is date specific, the person can also be an overstay if INS declares him/her in violation of status
  • Persons with D/S are considered overstays only if declared unlawfully present by an INS judge or adjudicator
  • The visa used to enter the U.S. automatically becomes invalid, even if it appears to be unexpired
  • All future visas must be obtained in the country of citizenship or legal permanent residence (some exceptions may apply)


Note: Anyone who is unlawfully present or an overstay is also out of status. All penalties listed for persons out of status will also apply.