Properly understanding one’s US immigration status is critical

DID you know that “failing to maintain status” is not the same thing as being “out of status” and that the government can still try to Deport (Remove) you, even if you are in a “Period of Stay Authorized by the Attorney General”? Why is it that some people that overstay their I-94 for years might not be barred from re-entering the US, but someone that accrues one year or more of “unlawful presence” might be barred for 10 years? Also, what is a “Change of Status, and why is it so different from an “Adjustment of Status”? In order to properly comply with US immigration law, and work within the law to meet your immigration goals, it is important to understand the distinction between the various immigration “statuses”.

The difference between Change of Status, Extension of Status and Adjustment of Status 

Change and Extension of Status are terms that apply only to people in the US pursuant to a nonimmigrant status (such as B-2, H-1B, TN, E-2, F-1 or L-1). If, for example, an H-1B worker in the US wants to change status to the H-4 status, a “Change of Status” request would need to be filed. If a B-2 nonimmigrant in the US desires to extend their I-94 period of stay, he or she would file an extension petition of the same status. It is important to note that both Change and Extensions of status should be applied for prior to the previous I-94’s expiration date.

ImWhile the Change and Extension of Status requests only apply to nonimmigrant visa categories, an Adjustment of Status is in a different class. Adjustment of Status is the process by which someone that is in the US in a nonimmigrant status or illegally, becomes a lawful permanent resident (Green Card holder). Adjustment of Status is therefore a much weightier and higher level of status in the US. Once someone becomes a Green Card holder, they will never again “extend” or “change” their status – unless the resident one day abandons or loses his or her resident status and becomes a nonimmigrant anew.

What is my status while a Change, Extension or Adjustment of Status is pending? 

If a nonimmigrant timely applies for an extension of stay or a change of status, he or she is generally permitted to remain in the United States while the application is pending, even if his or her I-94 expires during the pending period. In such a circumstance, government guidance deems the nonimmigrant to be in an authorized period of stay, assuming that the application was non-frivolous and no prior unauthorized employment occurred. Applicants for extension of status in the H-1B category allow the nonimmigrant to continue working in the previously authorized position for up to 240 days while the extension request is pending.

While an Adjustment of Status is pending, the intending immigrant is usually granted travel authorization and a work permit within 90 days. During the pendency of the adjustment application, the intending immigrant is deemed to be in a “period of stay authorized by the Attorney General.” Somewhat confusingly, government immigration authorities have stated that there is a difference between “maintaining lawful status” and being “lawfully present” in the US. Thus, although a person in this situation is able to work and does not accrue “unlawful presence”, ICE maintains that the Green Card applicant can still be removed – although in practice, it has only rarely occurred.

As an illustration, an individual whose B-2 authorized stay has expired, but who has filed for an adjustment of status might not be maintaining a lawful status, but he or she is lawfully present in the US and not accruing unlawful presence. Likewise, a student on an F-1 visa that stops attending classes is failing to maintain status, but does not accrue unlawful presence absent an official determination that he or she is out of status. Unlawful presence is an important concept because accruing over 180 days or one year of unlawful presence and then departing the US can subject an individual to a 3 or 10-year bar to re-entry.

More on unlawful presence 

Unlawful presence begins to accrue on the day that a person either: 1) enters the country illegally, or 2) has a lapse in lawful status. As described above, unlawful presence does not accrue if an individual has a properly filed extension, change or adjustment of status application pending. Unlawful presence also does not accrue if it occurred prior to 4/1/97, or while the person was under 18 or had certain other immigration applications pending. It is important to remember that a 3 or 10-year bar for unlawful presence only kicks in when the person departs the US.  A waiver for this ground can be granted if extreme hardship can be proven to a qualifying relative.

Conclusion 

The various immigration statuses are sometimes difficult to grasp and never completely fixed. Depending on the visa type, application filing, and current USCIS or ICE practice, what may appear to be a straightforward status determination, is often more complicated. If you are in the US and thinking of changing, adjusting, extending your status or departing the US after being here in a questionable status, speaking with an experienced immigration attorney to discuss your immigration situation is a smart decision. A simple lapse in status may cause a denial and place future immigration goals in doubt.

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Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience. His offices are located in Irvine, California.