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By Marc Topoleski, Partner at SSHD’s Detroit Office. 
How does a person become “out of status?”  
Each visa category has certain associated terms and conditions that govern the purpose for which you are being granted entry to the US.  For example, an F-1 visa holder is granted permission to enter the US to carry on a temporary course of study at a specific educational institution.  An H-1 visa holder is granted permission to enter the US to temporarily work for a specified US employer in a specific position.  Any time you cease to comply with the specific terms and conditions applicable to your visa category, you are considered to be out of status. 
  
What is the effect of being “out of status?” 
If the INS becomes aware that an individual is out of status, the individual could be subject to deportation for violating the terms of their status.  Any brief time an individual spends out of status can also impact that individual’s ability to receive future immigration benefits, especially as they relate to changing and adjusting status.  When changing to another nonimmigrant status or adjusting from nonimmigrant to immigrant status, one of the conditions of eligibility is that you have remained in legal status for the entire period you were in the US.  If, when applying to change or adjust status, an INS officer determines that you spent some time out of status, the officer will normally deem you ineligible to change or adjust status from within the US.  In this situation, you would need to process your application at a US Consulate abroad. 
  
What is unlawful presence?  What is the effect of being unlawfully present? 
As distinguished from being out of status, the INS determines unlawful presence based on any period spent in the US beyond the authorized period of stay noted on your I-94 card, unless the INS or an immigration judge makes a finding of a status violation on an earlier date.  For example, if, when you entered the US, you were issued an I-94 card with an authorized period of stay from March 17, 1998 to March 17, 2001, you would be considered to be unlawfully present in the US for any period spent in the US beyond March 17, 2001, unless you had obtained a new I-94 card based on another visa status.  So, for example, if you came to the US on an H-1 visa and lost your job on March 17, 1999, but stayed in the US without ever going back to work, you would be out of status beginning March 17, 1999.  However, assuming the INS never became aware of your status violation, you would not be unlawfully present in the US until March 18, 2001. 
The ramifications of being unlawfully present are much more severe than those applicable to status violations.  An individual that is unlawfully present in the US for more than 180 days is subject to a three-year bar to reentering the US.   An individual that is unlawfully present in the US for more than one year is subject to a ten-year bar to reentering the US.