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Adjustment of Status and Unlawful Presence

What constitutes unlawful presence?

Unlawful presence refers to entering the U.S. illegally or remaining in the United States beyond an authorized period of stay. Unlawful presence is not the same as being out of status, which refers to losing the valid status through which the foreign national initially entered the United States.

At what point does my lawful presence become unlawful?

Your I-94 will show the validity period of your authorized stay in the U.S., as well as your specific visa classification. Overstaying your I-94 is deemed unlawful presence. Any day spent in the U.S. beyond the authorized stay on your I-94, regardless of visa type, will constitute unlawful presence.

What happens if I lose my status due to termination of employment while in the United States?

There is a 60-day grace period following termination of employment (by either employee or employer) for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN visa holders to depart the United States. During this grace period, the foreign national may file to transfer their work visa (e.g. H-1B transfer and extension by another employer), or to seek a change of status to a different visa type.
The 60-day grace period applies only where the termination of employment occurred during the worker’s authorized petition validity. The rule states that the grace period is 60 days or “or until the end of the authorized validity period, whichever is shorter.” Therefore, the grace period is shortened or not applicable in cases where the authorized stay (generally shown on the I-94 card) is expiring or has expired.

Can I file to adjust nonimmigrant status to LPR status during the grace period?

During the 60-day grace period after termination of employment, your presence in the U.S. is still deemed lawful. If you file to adjust status during the grace period, along with an employment- or family-based immigrant petition, the immigrant petition and adjustment of status application will be accepted, and the individual will be deemed to have had lawful presence for that entire amount of time. Lawful presence will be applied retrospectively upon receipt of the adjustment of status application.
After filing Form I-485, Application to Adjust Status, USCIS will issue a receipt notice, which acts as a legal document granting an independent basis of lawful presence. If the adjustment of status application is tied to an employment- or family-based petition, it will act as an independent basis for lawful presence, independent of one’s employment or visa status.

I have accrued unlawful presence. Am I eligible to adjust status?

Yes. Under 8 USC 1255 (k), it is possible to adjust status if the foreign national has not accrued more than 180 days of unlawful presence. These 180 days refer to the number of days unlawfully present, and accrued in the aggregate. It is not limited to one period of stay. Therefore, if your total number of unlawfully present days exceeds 180, regardless of whether these 180 days were consecutive, the foreign national is not eligible to adjust status.

What are the implications of accruing more than 180 days of unlawful presence in the United States?

If you overstay your visa and are unlawfully present between 180 and 365 days, you are subject to a 3-year bar on reentry into the United States. An overstay of more than 365 days results in a 10-year bar on reentry.

I’ve lost my job and my accompanying visa status. I want to remain in the United States. Do I have options?

Absolutely. You may file a self-sponsored, employment-based immigrant visa petition, along with an adjustment of status application within 60 days of losing your job and your visa status. The Form I-485 Application for Adjustment of Status receipt notice will grant you an independent basis for lawful presence.