Unlawful Presence vs. Out of Status: What Every Immigrant Needs to Know

When it comes to U.S. immigration law, a common source of confusion is the difference between “unlawful presence” and “out of status.” These terms are not interchangeable – and knowing the difference can be the key to avoiding bars to reentry or serious immigration problems.

Unlawful presence begins when you stay in the United States beyond the expiration date on your I-94 Arrival/Departure Record – or after USCIS denies an application that ends your lawful stay.

Key consequences of unlawful presence:

• 1+ Day Overstay: Your visa becomes void, and you must obtain a new visa from your home country.
• 180+ Days: You may face a 3-year bar from reentering after departure.
• 365+ Days: You may face a 10-year bar from reentry.
• Multiple Overstays or Re-entry After Removal: You could be subject to a permanent bar, with very few waiver options.

On the other hand, being out of status means you are no longer following the rules of your visa, even if your I-94 has not yet expired. Examples include:

• Working for an unauthorized employer
• Violating student visa conditions
• Remaining in the U.S. after a divorce if you were on a dependent visa

You can be out of status without being unlawfully present, but a denied application or a long period of noncompliance can cause unlawful presence to begin.

Failing to distinguish between these two terms can have serious consequences. Leaving the U.S. while unlawfully present can trigger automatic bars to reentry, while falling out of status can jeopardize your ability to change or extend your visa.