If you are a foreign national in the United States who entered legally—perhaps on a student, tourist, or work visa—but have since fallen “out of status,” you may be feeling anxiety about your future. Falling out of status means that while you were originally admitted legally, you have now violated the terms of your visa, often by overstaying or failing to comply with visa requirements.
Accruing 180 days of unlawful presence can have serious consequences on future attempts to enter the U.S. It’s important to understand that remaining in the U.S. without valid immigration status carries risks, but there may still be options available to help you regain lawful status or at least avoid deportation. Here’s an overview of possible paths.
Understand the Nature of Your Out-of-Status Situation
First, determine when and how you fell out of status. For example: Did you overstay your authorized period of stay (as noted on your I-94)? Did you stop attending school while on an F-1 visa? Did you violate the terms of your visa, such as by working without authorization? Knowing your specific situation is crucial because it affects the available remedies.
Option 1: File for Reinstatement
If you were on a nonimmigrant visa such as F-1(student) or J-1 (exchange visitor) and fell out of status through no fault of your own or due to exceptional circumstances, you may be eligible to apply for reinstatement. You usually must apply within five months of falling out of status.
For F-1 students, this involves: Submitting Form I-539 to USCIS (United States Citizenship and Immigration Services); explaining the reasons you fell out of status, showing that you are pursuing or intend to pursue a full course of study, and proving you did not work without authorization. Reinstatement is not guaranteed, but if granted, puts you back in lawful status.
Option 2: Change of Status
In some cases, you may be able to apply for a change of status to another nonimmigrant category. For example, you may seek to change from B-2 visitor to F-1 student, or from one work visa to another. However, USCIS generally requires that you be in lawful status when you file, so this option is limited if you are already out of status. In rare cases, a discretionary approval may occur, but you should consult an immigration attorney.
Option 3: Adjustment of Status (Green Card)
If you are eligible for a green card through family, employment, or on another basis, you may be able to apply for adjustment of status. This process allows you to become a lawful permanent resident without leaving the U.S.
Certain family categories offer a major benefit: If you are the immediate relative (spouse, parent or unmarried child under 21) of a U.S. citizen, you can generally adjust status even if you are out of status. This does not apply to family-sponsored preference categories or employment-based green cards, where being out of status may require you to leave the U.S. and apply from abroad.
Option 4: Waivers and Consular Processing
If you cannot adjust status in the U.S., you may need to leave and apply for a visa at a U.S. consulate abroad. However, if you have been unlawfully present for more than 180 days, leaving the U.S. can trigger a three- or 10-year bar to reentry. To overcome this, you may apply for a provisional waiver (Form I-601A) before departing. You must show extreme hardship to a U.S. citizen, or lawful permanent resident spouse or parent.
Option 5: Asylum, U Visa, or Other Humanitarian Relief
If you fear returning to your home country due to persecution or harm, you may be eligible to apply for asylum, but you must apply within one year of arriving in the U.S., unless you qualify for an exception. If you have been a victim of certain crimes or trafficking, you may qualify for a U visa or T visa, which offer legal status and a path to permanent residence. You would need to cooperate with law enforcement in the investigation or prosecution of the crime.
Important Steps You Should Take
Consult an experienced immigration attorney. Immigration law is complex, and the wrong step can harm your future options. An attorney can assess your eligibility and recommend a strategy.
Gather documentation. Collect records of your lawful entry (passport, visa, I-94), evidence of your activities in the U.S., and documents showing why you fell out of status.
Avoid further violations. Do not work without authorization or engage in other activities that could hurt your case.
Act quickly. Time matters—some remedies have deadlines or are harder to obtain the longer you wait.
Conclusion
Falling out of status is a serious matter, but it is not necessarily the end of your U.S. journey. Depending on your situation, you may have options to regain lawful status, adjust status to permanent residence or qualify for humanitarian protections. The key is to act promptly, seek professional assistance and carefully explore your available legal pathways.
Barbara Wong-Wilson is an attorney at Mission Law & Advocacy, P.C. and SW Law Group P.C. If you have any questions on U.S. immigration matters, please feel free to reach out to wo**@*********ws.com or wo**@****pc.com.
