- H-1B Cap Issues
- H-1B Cap Exemptions
- Timing Issues for Cap-Subject H-1B Visas
- Building Your Case for Extraordinary Ability
EFFECTS OF UNLAWFUL PRESENCE
Since 1997, the U.S. Immigration and Nationality Act has had very harsh consequences for anyone admitted with a date-specific I-94 who overstays, or remains in the United States beyond the date when their lawful stay ends. Stay beyond the permitted end date on the I-94 card, even by a single day, is deemed Unlawful Presence.
Students do not automatically become unlawfully present if they stay beyond their grace period. However, even students admitted for Duration of Status may become unlawfully present: Like any traveler with a date-certain I-94 who has applied to USCIS for a change, extension or adjustment of status and received a denial, a student also becomes “unlawfully present” as of the date of a decision by USCIS denying their application or petition for an immigration benefit. Filing of an appeal, motion to reopen or reconsider after a denial does not stop or toll unlawful presence.
After even one day, unlawful presence voids the visa stamp on which the traveler last entered the United States. The traveler may not be readmitted to the United States except under a visa issued in the traveler’s country of nationality (usually the country of birth), so third-country visa processing is no longer available after unlawful presence has begun1.
The consequences of unlawful presence escalate with the passage of time, and with repetition.
A person who accrues over 180 consecutive days of unlawful presence, and then departs the United States, faces a three-year bar preventing their readmission under any temporary or immigrant visa status2, even with an approved petition.
A person who accrues over 365 consecutive days of unlawful presence, and then departs the United States, faces a ten-year bar preventing their readmission under any temporary or immigrant visa status3, even with an approved petition.
A person who has accrued a year or more of unlawful presence in the aggregate, from multiple periods of overstay, or a person unlawfully present after an order of removal from the United States, is subject to a permanent bar to readmission4. While there are waivers available to certain applicants for the 3- and 10-year bars, most individuals subject to the permanent bar will be ineligible for any waiver.
1 INA 222(g)
2 INA 212(a)(9)(B)(i)(I)
3 INA 212(a)(9)(B)(i)(II)
4 INA 222(a)(9)(C)(i)