Foreign nationals who violate their visa status can face serious consequences. Just ask Peter. Who is Peter? Okay, Peter is not a real person. He is a fictional foreign national who, to be clear, is not based on any of our clients (and any resemblance to a real person is entirely coincidental). Let’s say that Peter enters the United States as a B-2 tourist on December 5. The immigration officer processes his entry and Peter now has an I-94 (now electronic) with valid status until June 5.
Midway through his stay, Peter decides to make some extra money by spending his evenings working at a restaurant without obtaining proper work authorization for this employment. As of June 6, Peter has stayed past his I-94 date of authorized stay and is still living and working in the US and has not applied for an extension of stay or a change of status. As a result, Peter is out of status, has overstayed his I-94, and has started accruing unlawful presence. Additionally, he has engaged in unauthorized employment. What exactly do those terms mean, and more importantly, what’s the difference? This post helps break down the distinctions in the various ways an individual can violate their visa status and highlights the consequences of these violations.
Unlawful Presence
When foreign nationals are admitted into the United States, the period they are authorized to stay in the country for is generally noted on the I-94, which serves as proof of admission into the US. Remaining in the country beyond the authorized period of admission without a pending application to extend, change, or adjust status means that the person has started accumulating unlawful presence. If the I-94 is not date-specific, which can be the case for individuals on an F-1 or a J-1 visa, unlawful presence begins when an immigration judge or US Citizenship & Immigration Services (USCIS) makes an official determination. In other words, the simple expiry of documentation does not, by itself, trigger a period of unlawful presence for students; however, as one of our previous blog posts noted, USCIS recently proposed a policy that would change the way unlawful presence is calculated for students and exchange visitors such that individuals in F, J, and M status who have failed to maintain status will also start to accumulate unlawful presence. (The public comment period for the proposed policy closed on June 11, 2018, and the effective date of this policy is set to take effect August 9, 2018.)
Overstaying an I-94 expiration date isn’t the only way to start accumulating unlawful presence. A foreign national can trigger unlawful presence by entering the US without inspection, making a false claim to US citizenship, or staying in the country beyond a period of parole.
The implications of unlawful presence vary in severity depending on how many days of unlawful presence one collects. So, yes, Peter can get in serious trouble. Individuals who have accrued more than 180 days of unlawful presence and leave before the initiation of formal removal proceedings will be barred from re-entering the US for three years. Individuals who accumulate more than a year of unlawful presence, however, are subjected to a ten-year bar on admissibility to the United States.
A foreign national can request a waiver of these admissibility penalties if they are closely related (a child or a spouse) to a US citizen or permanent resident and can prove that inadmissibility would result in extreme hardship for the US citizen or permanent resident. Proving extreme hardship can be difficult, as one has to demonstrate a level of hardship that is higher than what would result from a “normal” relocation or family separation. Conditions such as job loss or the unavailability of educational opportunities and medical facilities, for example, would not rise to the level of extreme hardship.
Overstaying the Date of the I-94
An overstay occurs when foreign nationals are admitted into the country for a temporary period and then fail to depart the country during that period. While unlawful presence always involves overstaying one’s I-94, the reverse is not always true. There are situations in which foreign nationals can overstay their I-94 expiration without accumulating unlawful presence. For example, foreign nationals may file an application to change their status before the expiration date specified on the I-94. This pending application protects the individual from accruing unlawful presence if they remain in the country. If a change of status application is denied, however, applicants start to accumulate unlawful presence starting from the day of denial. If nonimmigrants overstay, and if they leave the US, they cannot be readmitted to the US until they return to the US Embassy/Consulate in the country of their nationality to obtain a new visa stamp. Individuals also become subject to removal from the country unless an extension of stay has been granted.
Unauthorized Employment
In order to work in the United States, a foreign national must be authorized to accept employment. Peter, who is employed despite holding a tourist visa, is an easy example of someone engaging in unauthorized employment. There are also other less obvious ways to work unlawfully in the US. For instance, foreign nationals holding H-1B status who quit their job and then start working elsewhere without filing a new employment-based visa petition have engaged in unauthorized employment.
The consequences for unauthorized work include the possibility of removal (commonly referred to as deportation). In addition, engaging in unauthorized employment can result in foreign nationals being barred from adjusting their status, or receiving further immigration benefits. In other words, working unlawfully may impede one’s ability to be eligible for a Green Card, particularly if the period of unauthorized employment exceeded an aggregate period of 180 days. Generally, USCIS does not categorize volunteering or investing as employment; however, employment may be considered unauthorized even if it is unpaid.
Out of Status
While unlawful presence generally involves a person staying beyond the date specified on their I-94, being out of status refers to whether a person has violated the specific conditions of their visa. These conditions can include limitations on employment, time limits on admission into the country, or compliance with any additional requirements. For example, individuals who enter on an H-1B visa and are given three years upon entry will be out of status if they stop working after six months. Their unlawful presence, however, does not begin to accrue until they have been in the US for over three years.
Being out of status does not always mean that one has begun accumulating unlawful presence, which triggers the bar on admissibility. Regardless of how one violates status, however, there are some standard repercussions. Foreign nationals who violate their immigration status become subject to removal. Additionally, foreign nationals who file an adjustment application while out of status will be barred from adjusting their status, unless they are the spouse or child (unmarried and under twenty-one-years-old) of a US citizen, or the parent of a US citizen older than twenty-one.
In short, while there is significant overlap between the ways in which one can violate the terms of their visa, there are some fine distinctions in the severity of consequences that one would face. While being out of status, engaging in unauthorized employment, and overstaying the date of the I-94 all pose serious implications (seriously, Peter, you shouldn’t do that!), unlawful presence has the potential to trigger a bar on admissibility that may last three or ten years—the most severe consequence facing someone who violates their visa status. Peter, and others who find themselves in similar situations, should consult with an experienced immigration attorney.
Nithya Swaminathan is a 2018 summer intern at Daryanani Law Group, PC. A graduate of Swarthmore College, she is a second year law student at New York University School of Law.