Maintaining Your Status

In recent years the United States has passed many new laws to penalize people who fail to maintain their nonimmigrant status in the United States. These laws are lengthy and complex, and you should contact a competent immigration lawyer to discuss your own case. Here are some important issues to watch for:

Overstays

When you enter the U.S. you are given a small white or green card called an I-94. Usually this has a date on it when you must leave the U.S. If you do not leave by that date, or apply for an extension before that date, you are an overstay. The period of time you overstay is called "unlawful presence." If you overstay by even one day, you are subject to section 222(g) of the Immigration and Nationality Act. This section applies if you entered the U.S. on a visa (a stamp in your passport). This law says that your existing visa is cancelled, and you must obtain any new visa in your home country only. Third-country nationals cannot get a new visa in Canada or Mexico. More importantly, if you overstay by 180 days, you are subject to INA 212(a)(9)(B)(i). This says that if you leave the United States voluntarily, you cannot re-enter the United States for three years. If you overstay by a year or more and leave, you are inadmissible for ten years. You may be able to obtain a waiver.

What if you are admitted without an I-94 (Canadians), or your I-94 says "D/S" (duration of status)? In such a case, unlawful presence does not begin unless there is a determination by an Immigration Judge or the Department of Homeland Security (DHS, formerly the INS) that you have violated your status. This could happen if you apply for a change of status or extension of stay. In such cases, therefore, it may be better to leave the country and return, rather than applying for an extension.

If you have overstayed, leaving the United States may be the best thing to do or the worst thing to do, depending on the circumstances. Get good legal advice immediately before you decide.

Working Without Authorization

Your immigration status may not allow you to work at all, or may allow you to work for only one employer. Students are subject to a very complex set of rules regarding their right to work. If you work without authorization, you become  an "unauthorized alien." This may render you subject to removal. It may also cause you to lose future immigration benefits. For instance, in some cases you cannot adjust status to permanent residence if you have worked without authorization even for one day. (There are, however, many exceptions to this rule.) Generally, you cannot obtain an extension of stay or change of status if you have worked without authorization. Under the new H-1B portability rules, you cannot begin work for a new employer upon filing of the petition if you have worked without authorization since your last admission into the United States. Unauthorized employment may also subject your employer to fines and other penalties.

Failure to Maintain Specific Nonimmigrant status

Each nonimmigrant category has its own rules. Students must maintain a full time course of study as defined in the regulations. H-1B workers must maintain continuous employment, but only with an authorized employer. B visitors must not engage in employment or full-time study. H-4 dependents may attend school, but may not work. If you do not or cannot follow the rules for your category, you are subject to removal from the United States and may be subject to other immigration penalties. Sometimes it is possible to change status to another lawful immigration category to solve the problem. For instance, an H-1B who loses his job, and who is married to another H-1B, may apply for a change of status to H-4. This must be done as soon as possible. A B visitor may apply for a change of status to a F student. However, under a new regulation, the B visitor may not begin studies until the change of status is approved.

Special Registration

Citizens and nationals of certain Islamic countries and some other nonimmigrants are subject to "special registration" at the time of entry into the United States. Anyone who has been subjected to this process must also register his or her departure at a designated port of departure. Failure to register your departure makes you inadmissible if you try to return.

Contact us now if you have questions or concerns about your status.