In U.S. immigration law, the terms “unlawful presence” and “unlawful status” are often used interchangeably. However, they are not the same — and confusing the two can lead to serious mistakes with long-term consequences. Recent policy shifts by the Department of Homeland Security (DHS) make this distinction more important than ever for students, workers, and families navigating the immigration system.
What Is Unlawful Presence?
- A foreign national is generally considered unlawfully present if they remain in the United States beyond the expiration date on their I-94 record, or after a denial of an immigration benefit such as an extension of stay.
- Even one day of unlawful presence can have consequences. For example, it can void the visa stamp used for the most recent entry into the U.S.
- Longer periods of unlawful presence trigger harsher penalties:
- 180 days or more → 3-year bar on returning to the U.S.
- 365 days or more → 10-year bar on returning.
- In some cases, repeated or extended unlawful presence can lead to a permanent bar to reentry.
What Is Unlawful Status?
Being “out of status” means the individual is no longer complying with the terms of their visa, even if the I-94 admission record has not yet expired. Examples include:
- An H-1B worker taking on unauthorized freelance work.
- An F-1 student working off-campus without proper authorization.
- A dependent spouse remaining in the U.S. after divorce from the principal visa holder.
While being out of status is a violation, it does not automatically mean unlawful presence is accruing — unless USCIS or an immigration judge formally determines it during a case review.
Why the Distinction Matters
- Unlawful presence directly triggers reentry bars and invalidates visas.
- Unlawful status can result in loss of immigration benefits, ineligibility for changes of status, or exposure to removal proceedings.
- For students in Duration of Status (D/S) categories (such as F, J, or I visas), unlawful presence typically begins only after USCIS or a judge finds a violation. However, DHS has proposed eliminating “D/S,” which would make the timelines much stricter.
NPZ Guidance
Understanding whether someone is unlawfully present or simply out of status is critical in deciding next steps. A misstep could mean triggering bars to reentry or losing eligibility for future immigration benefits.
At NPZ Law Group, our attorneys carefully evaluate each client’s immigration history to identify risks, explain consequences, and develop strategies to protect status. If you have questions about your situation or a family member’s, we encourage you to reach out for a consultation.
Frequently Asked Questions (FAQ)
1. Can you be out of status but not unlawfully present?
Yes. For example, unauthorized work may place someone out of status, but unlawful presence typically begins only when the I-94 expires or a violation is formally determined.
2. What happens if I overstay my I-94 by just a few days?
Even one day of unlawful presence voids the visa used for entry. Longer overstays may trigger multi-year or permanent bars.
3. Does unlawful presence apply to students admitted for “Duration of Status” (D/S)?
Not immediately. For D/S categories like F, J, or I visas, unlawful presence usually begins only after USCIS or an immigration judge finds a violation.
4. Can I fix unlawful presence by filing an appeal or motion?
No. Filing does not stop unlawful presence from accruing, unless the appeal is successful and the denial is reversed.
5. What should I do if I think I may be out of status or unlawfully present?
Seek legal advice promptly. Options may include extensions, reinstatement, or departure before bars are triggered.
Contact Information
If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information.