Maintaining Status After September 11, 2001

Now more than ever before, a foreign national in the United States must be acutely aware of maintaining his or her immigration status. In house counsel and human resource personnel must take a special interest in assisting their foreign personnel in remaining in status. A lapse in status can have a significant impact on one’s ability to stay in the U.S. lawfully. The INS is now taking even minor technical violations very seriously. Individuals should carefully consider that status violations affect eligibility for benefits and residence in the U.S.

Maintaining status is the foreign national’s responsibility, but it is not always within his or her control. A foreign national can go out of status if he or she loses his or her employment in the U.S., such as an H-1B employee who is laid off. This action is beyond the foreign national’s control, but it nevertheless immediately renders the foreign national out of status. Please note that although there has been discussion of a grace period being instituted for H-1B employees, no grace period exists in the regulations at this time. Therefore, as soon as the employment relationship between an H-1B employee and his or her employer is terminated, the H-1B employee is immediately out of status.

A failure to maintain status can result in denial of applications to extend or change status. It may also prevent a foreign national from being able to adjust status in the U.S.

There are, however, many things a foreign national and his or her attorney can do to ensure that the foreign national maintain status. Individuals should always:

• Inform the INS immediately of any change of address. Failure to do so could result in not receiving official correspondence affecting your status in the U.S.
• Timely file for extensions of stay. A timely filed extension application is one that is filed before your current status expires. Most individuals on employment-based nonimmigrant visas can continue to work while their extension is pending, even after their current status expires, as long as the extension was timely filed.
• However, keep in mind that this benefit does not extend to individuals working under the authority of an Employment Authorization Document (EAD). If you are working with EAD, you must have the new EAD issued before you current one expires. If you file for an EAD extension and the new card is not issued by the time your old card expired, you are not work authorized. This does not necessarily mean, however, that you are out of status. Renewals can take 90 days.
• Comply with all of the conditions of your status. If you are a student, this means maintaining a course load that does not jeopardize your full-time student status. If you are an H-1B employee, this means maintaining your employment relationship with your employer according to the conditions described in your H-1B petition. Remember that material changes to your job, such as moving to a new worksite or receiving a promotion, could potentially affect your H-1B status.
• Keep in mind that your stay in the United States is governed by the date on your I-94 card and not the date on your visa or your INS approval notice. If your I-94 card reflects that you are admitted to the U.S. for a shorter period of time than is reflected on your INS approval notice or on your visa, it is the date on the I-94 card which controls. If you stay in the U.S. beyond this date without timely filing an extension or a change of status, you are out of status and you may be potentially accumulating unlawful presence.

Human Resource personnel and their immigration attorneys must ensure that an accurate tickler system is in place for tracking of their foreign employees. Greenberg Traurig uses a sophisticated real-time web based database that our clients have access to. This can assist in avoiding lapses in status and unauthorized work.

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