Skip to main content

Understanding Overstay, Out-of-Status and Unlawful Presence

Individuals who will be entering the U.S. as nonimmigrants or who have already been admitted by CBP should take care that they do not become overstays, fall out-of-status or accrue unlawful presence.
Once an individual is admitted to the U.S., they must maintain their lawful status.  A nonimmigrant may violate their status if they remain in the U.S. beyond the expiration date notated on their I-94 card, engage in employment without CIS authorization, or engage in an activity that is not consistent with the status in which they were admitted.
Overstay means remaining in the U.S. beyond the date which has been indicated on Form I-94 at the time of admission.  Overstays are the most common act that cause people to be out of status.  Individuals who have been admitted for duration of status (“D/S”) such as F-1 students, can only overstay if they are found to be in violation of their status.
Out-of-Status means that an individual has violated the terms of their lawful status in some way.  Specific statuses are associated with allowable activities or purposes.  Examples of activities that could render a person out-of-status include unauthorized employment, an F-1 student who does not attend school, an L-1 intra-company transferee who quits their job, or committing a serious crime.
Unlawful presence can be triggered by entering the U.S. without inspection, staying in the U.S. beyond a period of parole, making a false claim to U.S. citizenship, or remaining in the U.S. beyond the period of authorized stay as noted on their I-94 card.
Foreign nationals who have accrued more than 180 days but less than one year of unlawful presence will be barred from re-entering the U.S. for three years.  Those individuals who have been in the U.S. for one year or more beyond the period of authorized stay are subject to a ten-year bar.
Berardi Immigration Law can monitor an individual’s status to ensure that they do not become overstays, fall out-of-status or become subject to a bar.  We urge you to contact us by calling 877-721-6100 or send an e-mail by clickinghere.
Page summary:  Explanation of the differences between overstay, out-of-status, and unlawful presence.