Lawful Status, Authorized Stay and Unlawful Presence: Related, But Unique Concepts You Need to Know
Lawful status, period of authorized stay, and unlawful presence are all terms that in the immigration context, refer to related, yet unique concepts. It is crucial to understand these concepts as they can have a major impact on the success of one’s immigration case or petition.
All U.S. citizens and U.S. nationals have lawful status in the United States. Lawful status is not restricted only to citizens and nationals. Foreign nationals who have been allowed to enter the U.S. on a temporary or permanent basis also enjoy lawful status within the U.S. For example, a legal permanent resident or a foreign national holding an H-1B visa will also have lawful status. For foreign nationals, lawful status is generally demonstrated by two prongs: a valid I-94 and acting within the confines of their issued visa. An unexpired I-94 shows that a foreign national has entered the U.S. legally through inspections. Additionally, a foreign national must adhere to the parameters of their visa. For example, with a few exceptions, a student in the U.S. on a F visa must not work to remain in lawful status.
Authorized Period of Stay
While the term sounds interchangeable with lawful status, a period of authorized stay is distinct. Generally, this concept comes into play when a foreign national is exchanging or extending their nonimmigrant status or if they are adjusting their status in the U.S. If a foreign national is petitioning to change or extend their status before their current status expires, they will generally be authorized to remain in the U.S. even if their status expires while their petition is under review by U.S. Citizenship and Immigration Services (USCIS). The same pattern holds for a foreign national who is adjusting status. An applicant for adjustment of status who falls out of their current nonimmigrant status is permitted to remain in the U.S. while their petition is pending. This limbo period is what is referred to as an authorized period of stay.
If a foreign national does not have lawful status or authorized stay in the U.S., they are considered to be unlawfully present. In most cases, unlawful presence commences after a foreign national’s status expires and the foreign national does not have a petition in review. Foreign nationals who enter the U.S. without inspection or remain in the U.S. after a petition is denied are also unlawfully present. Unlawful presence accrues while the foreign national remains in the U.S., and there are severe consequences for significant periods of unlawful presence, which can include bars on reentry. Accruing unlawful presence can also hurt future petitions, so it is essential to understand this particular concept.
Navigating the nuances of immigration law can be complicated and difficult on one’s own. Feel free to give Berardi Immigration Law a call to schedule a consultation if you have additional questions!