🕳️ Don't Fall Into the Unlawful Presence Trap

This Week’s Immigration News Highlights

• U.S. Green Card Holders Must Have Documentations at All Times

• Trump Admin Sues New York City to Block Sanctuary City Laws

• Trump has Dismantled U.S. Immigration Courts

📌 How Long Can You Stay After a Denied Change of Status?

Change of status (COS) applications are a common way for people already in the U.S. on one visa to switch to another. For example, from a tourist (B2) visa to a student (F1) visa. But what happens when that application is denied?

This is a tricky legal moment, and getting it wrong can lead to serious consequences, including accumulating “unlawful presence,” triggering 3- or 10-year bars, or facing removal proceedings. Here’s what every immigration advocate, student, or early attorney should understand:

✅ If Your I-539 or I-129 Was Filed While in Status:

If your application to change status was filed before your current visa expired, you may have been in a period of “authorized stay” while waiting for a decision. However, once the denial hits, that protection ends immediately and you’re expected to leave the U.S. as soon as possible.

There is no automatic grace period after a COS denial. Every extra day you remain in the U.S. could count as unlawful presence unless you act.

📆 Grace Periods Only Apply in Limited Situations:

For certain employment-based statuses (like H-1B or L-1), the government provides a 60-day grace period after job loss. But if your COS was denied and you weren’t in one of these statuses, this grace period does not apply.

🔁 Can You Reapply or File a Motion?

Yes. If you believe the denial was due to error or missing documents, you can file:

• A Motion to Reopen or Reconsider (Form I-290B) within 30 days of the denial.

• A new COS application, though if you’re now out of status, it may be denied unless you qualify for certain exceptions.

Filing these does not automatically stop the accrual of unlawful presence.

🚨 Why It Matters:

Accumulating more than 180 days of unlawful presence before leaving the U.S. can result in a 3-year reentry bar. More than 365 days? That becomes a 10-year bar. And unlawful presence also makes future visa applications significantly harder.

If you receive a denial, consult an attorney immediately and depart quickly if there’s no viable legal remedy.

📄 How to Read a Notice to Appear (NTA)

A Notice to Appear (NTA) is the formal charging document that places a noncitizen into removal proceedings. But despite its importance, most NTAs are riddled with legal jargon that can confuse even seasoned professionals.

Understanding what’s on this form—and what’s not—can shape the entire defense strategy.

🧾 Key Sections to Read Carefully:

• Biographic info: Make sure your client’s name, DOB, and alien number are correct.

• Allegations: The factual statements USCIS or ICE is using to justify removal (e.g., “Entered the U.S. without inspection on XX date”).

• Charges: Legal grounds for removability under the Immigration and Nationality Act (INA)—for instance, INA §212(a)(6)(A)(i) for unlawful entry.

• Hearing Details: The date, time, and location of the initial hearing before an immigration judge. If these are blank or marked “TBD,” it doesn’t mean the NTA is invalid—but watch for a later notice by mail.

⚠️ Missing Info ≠ Dismissal (Usually):

In Pereira v. Sessions (2018), the Supreme Court ruled that an NTA missing hearing time and place cannot trigger the “stop-time rule” for cancellation of removal. However, it does not automatically dismiss the case or make the NTA void.

🧑‍⚖️ Strategic Use:

• You may be able to challenge jurisdiction or seek termination if the NTA has serious deficiencies.

• Always ask: Does the NTA support the government’s burden of proof?

• Consider FOIA-ing your client’s full file to spot inconsistencies.

In Closing!

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Both a denied change of status and a Notice to Appear mark the beginning of high-stakes timelines that are often misunderstood. Knowing what triggers unlawful presence or removal proceedings can mean the difference between relief and long-term consequences.

Until next time, enjoy another beautiful summer weekend!