01/13/2009: Consequences of Unlawful Presence vs. Out of Status for F-1 Foreign Students
The current economic recession not only produces high unemployment but also violation or drop out of school for some foreign students in F-1, including those students in Optional Practical Training after finishing school. Some of these OPT F-1 professional may apply for FY 2010 H-1B cap beginning from April 1, 2009. When a nonimmigrant violates the immigration law including unauthorized employment and out of status, they face two adverse consequences. One consequence is that they cannot extend or change of the nonimmigrant status "within the United States." However, this consequence does not deprive such nonimmigrants of an apportunity to apply for the exension or change of their nonimmigrant visas through the American Consulate in their home countries inasmuch as they have not overstayed in the U.S. longer than 180 days (six months). Accordingly, once they fall under the second category, they face additional consequences of not even being able to apply for a visa at the American Consulate outside of the U.S. and not being able to return to the U.S. for three or ten years. The first consequence is triggered by any violation of their nonimmigrant status. It is called "out of status." Thus one can fall out of status even during the period of a valid I-94. The second consequence is called "unlawful presence or unauthorized presence beyond the permitted staty." It is thus not triggered even if there was a violation of "status" by unauthorized employment or falling unemployed etc. unless the permitted stay expires on their I-94. If they overstay six months or longer and go to an American Consulate to apply for a visa, such application is denied on the ground that they are subject to the bar from returning to the U.S. for three years. If they overstayed for one year or longer, they are subject to a 10-year bar and cannot return to the U.S. and the American consulate is unable to issue a visa to them. There are relief of a waiver in a very limited situation, but generally, this is a situation which every nonimmigrant in the U.S. must face when they overstay beyond the expiration date of their I-94. Accordingly, the second consequence is considered more deadly in that they are not only disallowed to extend or change of status within the United Staes but also will be ineligible for nonimmigrant or immigrant visa applications for three years or ten years even outside of the U.S.. For these reasons, when a nonimmigrant falls out of status by violation of maintenance of their nonimmigrant status but still within a valid I-94, the immigration practitioners advise such nonimmigrants just to file the I-129 petition by the employers but not to apply for change of status and then leave the country before reaching 180 days of expiration of their I-94 so that they can apply for the nonimmigration visas outside of the U.S. rather than within the U.S, unless the practioners thinks a nun pro tunc opportunity may be available for them.
However, for the F-1 or J-1 or I-1 nonimmigrants, there are no specific expiration dates on their I-94. It just states "Duration of Status" or "D/S." When there is no specific expiration date, who should determine the expiration of status for these nonimmigrants? For these nonimmigrants, they are immigration officials or consular officials or immigration judges. To put it other way, unless one of these government officials determines that these nonimmigrants violated the status. Accordingly, even if they are unable to apply for the change of status within the U.S. for the violations, they can still apply for such visa based on the employer's petition approval no matter how long they stayed beyond the violation of the status unless it is determined such by one of these officials and one keeps staying for six months or one year beyond the date of such determination by the official. In other words, they are not subject to the 3-year bar or 10-year bar unless they keep remaining in the U.S. for six months or one year or longer beyond the date of such decision. How do the government officials detect and determine their violation of nonimmigrant status? In most cases, it is the act of the nonimmigrant themselves - submitting any applications after failing maintenance of nonimmigrant status with or without the knowledge of this second consequence. Since most likely, their applications will be denied by the government officials for violation of status, the 3-year or 10-year bar clock to count six months or one year will start ticking. For these reasons, these special nonimmigrants in D/S who have stayed in the U.S. for a long time after violation of their nonimmigrant status may not want to ask change of nonimmigrant status when the prospective employers file certain employment petitions.
For the foregoing reasons, these special nonimmigrants should review their eligibility for change of status more carefully than other nonimmigrants such that they preserve their privilege(?) of another opportunity to seek another nonimmigrant visas or immigrant visas outside of the U.S. in the future even after the present petition by the prospective employer is denied. When the alien does not seek change of status, the employer's petition does not release the information on the beneficiary other than name, date of birth, citizenship, and foreign address. Since no whereabouts or no immigration status information needs to be disclosed, they will be protected from the adverse determination of their violation of the status by the officials triggering the clock of 3-year bar or 10-year bar. I want to reiterate two points. (1) Review carefully to ensure that they are eligible for the petition in terms of the employer, job, and their qualification including required education and experience. (2) Do not ask change of status within the U.S. and do not disclose the details of whereabouts and status in the employer petitions. Believe me, this will allow another opportunity to applye for the same or other types of nonimmigrant or immigrant visa applicationopportunities after the denial of the present petition in the future, unless they are willing to depart from the country upon the denial of the present petition in a short period of time.
