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ResourcesVisa & Immigration LawUS Immigration LawAmerican Immigration Law: What Is Duration of Status?

American Immigration Law: What Is Duration of Status?

Transcript of the above video:

As the title of this video suggests we are going to be talking about so-called Duration of Status. What is this? Well when you are admitted into the United States in visas such as the F visa for example, the F1 student visa, or the J-1 Visa, exchange visitor visas, or even the M Visa. In some cases when one is admitted into the country, for example on a student visa, when one is admitted into the country, they are stamped in and with a tourist visa it is usually you are given a 6 month duration which means there is a set date noted in your passport with respect to the date you need to leave the country and any time spent outside or beyond that date in the United States, is considered time accruing towards overstay and it is considered unlawful presence in the United States.

In student visa cases or J-1 visa cases which we primarily deal with both of those Visa categories over here, Ms not so much but Fs and Js fairly frequently or at least I often deal with the aftermath of an F and J where someone has been in the United States and when they are stamped in they are not given an actual date when they have to leave because it is unknown. Things like medical students in the United States may have to undertake a practicum after they go ahead and undertake some sort of medical degree in the United States, or anyone in a University. There are various programs that require something akin to an apprenticeship in the United States after undertaking the course of study because it is sort of all-encompassing; it is integral to learning that given subject. Well the problem is you can’t delineate when that individual needs to leave the United States and that is where Duration of Status comes in. Duration of Status in my opinion was created as a statutory expedient. It basically said, look we cannot delineate the exact day upon which an individual needs to go ahead and leave the country and so what we're going to do is we are just going to stamp them in and usually what you see when a US Customs and Border Protection Officer stamps someone in Duration of Status is you will see a D/S notation on the entry stamp and that means Duration of Status. Well determining the moment that duration has ended has always been difficult. Now as we go into in some great detail in another video, this policy is changing. This video is to explain what the policy is. So if someone enters on an F Visa and the problem is you see a lot of folks that will enter and then they don't leave and they may have quit, they may have left their course of study or whatever and they simply don’t leave. The problem with that from an immigration perspective is you can't nail down an exact day or at least as at the time of this filming you can’t nail down an exact date at which that individual was unlawful, was unlawfully present in the United States. You can't do that because it is pretty murky. At what point was that individual not in status anymore? And again that is the reason for the statutory expedient of just saying “we are not going to know and we have to deal with it”. The upshot of this is and the downside in the view of critics of the current immigration apparatus, is that this allows people to remain in the US, sometimes for very prolonged periods of time, without accruing time toward unlawful presence which then creates an overstay bar to returning to the United States; creates a legal ground of inadmissibility to come back to the United States. There is another video specifically on legal grounds of inadmissibility on this channel specific to overstay; I suggest those who are watching this that are interested in that topic, go ahead and check out that video as well.

But the thing to keep in mind is when you are in D of S, you can’t accrue overstay particularly. There are circumstances where you can and I will explain that in a moment but the thing to take away from this video is, just sort of conceptually,  that individual is admitted in this Status and then you can't really nail down the moment that their lawful presence sort of “faded away” for lack of a better term. So some folks will kind of end up with what some consider to be a sort of an inequitable benefit by dint of the fact that they just were in Duration of Status when they went into the United States.

So, in the past you could start accruing unlawful status notwithstanding being admitted in Duration of Status under the following circumstances: The day after Department of Homeland Security denies the request for an immigration benefit.  If DHS made a formal finding that the individual violated his or her non-immigrant status while adjudicating a request for another Immigration Benefit. So if one is in the United States in an F-1 for example, and they were admitted in Duration of Status and they go apply for another non-immigrant category, say they apply for an H-1(b) and they are denied that H-1(b), at the point of that denial, it is sort of looking at it like a taxable event, it is a clear plenary event, a denial has occurred. Now we can delineate a time where unlawful presence begins accruing. The day after the I-94 expired or the day after an Immigration Judge or in certain cases, the Board of Immigration Appeals, (BIA)  ordered them excluded, deported, or removed whether or not the decision is appealed.

So once you get an IJ order, an order from an Immigration Judge, or the BIA, that is sort of again one of these preliminary moments along with an I-94 expiration where basically you can just delineate. We know that, we can start the clock from that moment. That has been how it has been up until forthcoming August 9, 2018. Things are changing. There is another video on this channel specific to the changes with respect to Duration of Status and I urge viewers who are watching this go ahead and check out that video in order to see how this stuff is being updated and changed and the ramifications associated therewith.