byImmigration

Immigration law can be complex, and small mistakes can have life-changing consequences. One of the most common areas of confusion is the difference between “unlawful presence” and “unlawful status.” While the terms sound similar, they mean very different things in U.S. immigration law—and each carries unique risks for visa holders, students, and workers.

At Peerally Law, a trusted immigration law firm in California, we often meet clients who are unsure whether they are simply “out of status” or if they are accruing “unlawful presence.” Understanding this distinction is essential to protecting your ability to remain in the United States and to secure future immigration benefits.

What Is Unlawful Presence?

Unlawful presence starts when someone stays in the U.S. beyond the expiration date on their I-94 (the entry/departure record issued at the airport or border) without filing a timely extension or change of status.

– Even one day past the I-94 expiration can trigger unlawful presence.
– Certain visa holders, such as students on F-1 visas, exchange visitors on J visas, and some others, are admitted for “Duration of Status” (D/S) rather than a fixed end date. They don’t automatically accrue unlawful presence if their program ends, but USCIS or an immigration judge can still find them unlawfully present if a status violation is determined.
– Once unlawful presence begins, it can invalidate visas and lead to bans on returning to the U.S.:

  • 180+ days of unlawful presence → 3-year bar to reentry
  • 365+ days of unlawful presence → 10-year bar to reentry
  • Multiple or long overstays → possible permanent bar

Unlawful presence is one of the most serious issues in immigration law.

What Does “Out of Status” Mean?

Being out of status means a person is not complying with the terms of their visa, even if their I-94 hasn’t expired yet. This is different from unlawful presence. Examples of being out of status include:
  • An H-1B worker who starts a side business without authorization.
  • A dependent spouse (H-4, O-3, etc.) who works without proper employment authorization.
  • A student (F-1) who drops out of school but continues living in the U.S.
  • A spouse who loses status after a divorce from the primary visa holder.
In these cases, the person is violating U.S. immigration rules but may not yet be accruing unlawful presence. However, being out of status can still result in visa denials, problems adjusting status, or difficulties reentering the U.S.

Why the Difference Matters

– Unlawful presence = harsh penalties, including 3-year, 10-year, or permanent bars.
– Out of status = violations that can block extensions, changes of status, or green cards.
– Many immigrants don’t realize they can be “out of status” without being “unlawfully present”—but once unlawful presence begins, the consequences become much more severe.

How Peerally Law Can Help

If you’re worried about overstaying your visa, violating your status, or being found unlawfully present, you need an experienced immigration lawyer to guide you. At Peerally Law, we:

– Analyze whether you are out of status, unlawfully present, or both.
– Advise you on the best strategy to protect your immigration future.
– Help you avoid reentry bans and maximize your chances of approval for future applications.

📞 Contact Peerally Law today to schedule a consultation with a California immigration attorney who understands the complexities of unlawful presence and out-of-status cases.

Whether you are a student, a worker, or a family-based immigrant, we are here to help you navigate U.S. immigration law with clarity and confidence.