Unlawful presence is a stay in the Unites States, after the period authorized by immigration authorities. A foreign national who decides to enter the United States can legally do so after applying for and receiving appropriate visa in his or her home country and is admitted by a customs officer at the U.S. port of entry.
The officer is the one who decides if the visitor can enter the U.S. He or she will also be the one to give a lawful status carried out at the period of stay in the country. While in the U.S., the visitor must maintain such lawful status.
When do you accrue unlawful presence?
- When you enter the U.S. other than accepted port of entry. Foreign nationals who entered the country without inspection acquire unlawful presence beginning the date of entry, unless protected through a provision of law.
- When you are paroled into the country and such parole is no longer effective, unless you are protected from accrual of unlawful presence.
- When you enter the U.S. after making a false claim to the USCIS or you were neither inspected nor admitted. In this case, you have accrued unlawful presence from your date of entry.
- When you remain in the United States beyond your authorized period of stay, as specified on the I-94. (Form I-94 is used by the U.S. Customs and Border Protection to note the arrival and departure of foreign nationals under nonimmigrant visa status and must be completed upon entry.)
Consequences of Unlawful Presence
In 1997, the U.S. Congress decided to penalize foreign nationals who stay in the country unlawfully. This is through the 3-year, 10-year, and permanent bar. These provisions of the law prohibit applicants from returning to the U.S. legally if they were in the country unlawfully.
- The 3 and 10-year Bar. A foreign national who stayed unlawfully in the U.S. for more than 180 continuous days and then left the country voluntarily before being caught and subjected to deportation proceedings could be prohibited to come back in the country for 3 years. On the other hand, if he or she stayed in the U.S. unlawfully for more than 365 continuous days and left before being deported he or she could be barred to return for 10 years.
- Permanent Bar. A person who accrues unlawful presence for more than one year and is ordered deported and then enters or attempts to enter the U.S. again unlawfully could be permanently prohibited to return to the country.
Also called time bars, these consequences apply only if a person leaves the U.S. and attempts to enter again by applying other visa or a green card. Before, people who left the U.S. and show up to the overseas consulate for immigrant visa interview were unaware that they could be barred from entering the U.S. after going through all the process. However, some applicants can apply for provisional waiver to be allowed reentry.
Provisional Waiver of Inadmissibility
A child or spouse of a U.S. citizen or a U.S. permanent resident could be the lucky few who can try to get a waiver, but this is not easy to acquire and requires a lawyer. To qualify, the applicant must show that if the visa is not approved, the spouse or parent in the U.S. will suffer from tremendous hardship. This could mean financial difficulty or extreme sadness living many miles away especially if the parent or spouse has serious medical condition that requires attention. The not so good news is that the hardship on the applicant would not count. However, he or she could make an argument that the suffering could affect the U.S. citizen or permanent resident relative.
Nonimmigrants who are barred under the 3- or 10-year provision can seek waiver under INA § 212(d) (3). Children or spouses of a U.S. immigrant can ask for it under INA § 212(a) (9) (B) (v). Refugees or asylees can also seek for a waiver under INA § 209(c) and applied by form I-602. The waiver can be granted by the USCIS without the application.
Those who are subject for permanent bar in general cannot seek for a waiver of inadmissibility except for small categories admitted. These include NACARA or HRIFA applicants, legalization (SAW, LIFE) applicants for humanitarian reasons, TPS applicants and qualified battered applicants.
Difference Between Out of Status and Unlawful Presence
There are instances when a person may be out of legal status but is not accumulating unlawful presence. Out-of-status means a foreign national may have lost his or her immigration status because of some violation of the terms. These include working without permit, not being able to marry the petitioner under fiancé-based visa or not being able to study under student visa.
An F-1 student who is allowed to stay only at a particular period does not accrue unlawful presence until authorities prove they violate their status. Additionally, a person who files for adjustment of status does not accrue unlawful presence from the date of filing. Accrual only starts when the application is denied. If he or she decides to file a motion for reconsideration, it does not stop the accrual unless the benefit is granted. Foreign nationals who are under unlawful status for reasons other than overstaying may not be subject to the time bar.
Immigration laws can be complex, especially if you try to calculate period of residency. While in the U.S., it is important to maintain lawful status but if you are staying in the country unlawfully, you can see a lawyer to advise you on how you can adjust your status. He can tell you if there is a pending legislation that could expand your right to apply for status adjustment or when your spouse could be eligible for citizenship, or how you can use provisional waiver. An immigration lawyer can explain your concerns regarding unlawful status or unlawful presence. He can help avoid offenses that can affect status or your chance of obtaining citizenship.