yoj

My question relates to what appears to be conflicting opinions and perhaps misconceptions:

If one is laid off, while on an E-3 visa, and the I-94 date extends either up until the visa expiration, or further - what is the status.

It appears according to some, that once laid off, one is "out of status" immediately - yet I have seen many immigration sites (including posts on this site) state that I-94 is the overiding document and one is able to stay in the country until the date written on the I-94.

Does being laid off negate the I-94? Or does being laid off just prevent one working until a new visa and job are secured? What are the implications of remaining in the states after being laid off, if the I-94 does not expire until a much later date?

brook_girl

In case of layoff one cannot stay legally in USA even if I-94 is valid. Since there is no premium processing available on E-3 visa one have to leave within 10 days and re-enter with a new label (in case of layoff). E-3 and TN visas are temporary in nature which means they are harsh when it comes to layoff.H1B have dual intent as per law which means there are some consideration and better grace period involved.The laws for TN,E-3 and H1B are very much different which is because of dual immigration intent.

meauxna

There is no grace period for either visa, there's simply no penalty for leaving the US "immediately".

yoj, the I-94 can only still be valid in the way that you state if the individual is still in status (has their job).

ozEcho

My understanding is that if you are laid off you are "out of status" and should leave the country within 10 days. You can't claim unemployment (obviously). Being "out of status" is not good... but once you do leave the country, that problem is no longer an issue.

However, if you did stay longer, you are not in "unlawful presence" until your I94 expires (which would be really bad and would mean not being allowed back in the country for 3 to 10 years).

I thought this applies to the H1B as well... as it is also a non-immigrant employment based visa.

If you qualify, you could also apply to USCIS to change status to a B1/B2, which might give you more time if your I94 was about to expire.

Let the discussion begin....

yoj

Thanks, this all makes sense - it still seems that there are conflicting opinons on this.

Also -

The 3 year ban I believe is after staying more than 180 days, and 10 year is for an overstay of a year. I suppose being here after the I-94 is over, but less than that could jeapardize future visas.

meauxna

I don't see how there should be conflicting "opinions" about it, therefore I've split your posts out to their own thread for more attention.

brook_girl

After 10 days of overstay you are ineligible to use VWP.

Folinskyinla

Hi:

I would use the term "possibly in violation of status" rather than "out of status." The answer will be a somewhat fuzzy "you have a 'reasonable' amount of time to depart."

I know, just know, you will ask what do I mean by "reasonable??" And that is a very good question. I would not venture an answer, but the question is reasonable.

brook_girl

"reasonable time" creates an open end (grey area) in law. Another thought to this question is well does this means if somebody have valid E-3 visa (non expired) in his passport can he enter US without any difficulty until the date on the visa stamp is valid?

E3only

Why would one want to risk it? Leave and apply for VWP or B visa and tell them you need to sort out your mess in US before you leave for good. That to be, is a better way than just concentrating on 'grey area' and take it to the authorities which btw would mean you are at their mercy.

I know 10 days is hardly a time to get ready to leave but that's the way it is and that's the way it was when visa was granted so need to follow that rule. May be negotiate with employer asking for 2 more weeks or whatever! OR if that is not possible then per above.

My 2 cents worth.

Ozzidoc

After even one day's overstay you are ineligible to use the VWP.

JCraigFong

"After even one day" UNLAWFULLY PRESENT, then yes, one is ineligible to use the VWP.

The original poster is NOT an overstay. He may be in violation of the terms of his visa, or be out of status, but he is NOT unlawfully present, nor is s/he an overstay -- yet.

Ozzidoc

crg

Overstaying the VWP prevents someone from using the VWP again. Overstaying a few days after being admitted on a visa doesn't always impact their VWP eligibility but would cause a 222(g) problem where the visa would be void.

Someone could overstay a period of admission after entering on a visa for up to 180 days and still be eligible to seek entry under the VWP because they have not violated the VWP and don't fall under a ground of inadmissibility.

The problem is that they can decide to refuse VWP applicants very easily. The longer someone disregarded their required departure date on a prior trip, the more likely the guards will be concerned enough to deny entry under the VWP.

Of course, if someone is caught in the US as an overstay, even less than 180 days, they are subject to arrest and removal.

ozEcho

So how bad is that?