Unlawful presence is often a problem for certain persons (e.g. those who entered without inspection or entered on a C1, C1/D or D visa) who are prevented by law from adjusting or changing status in the US but who the law requires to leave the US to apply for a visa at a US consulate. It is also a problem for some persons who overstayed in the United States and later seek a visa to return to the United States.
Unlawful presence is a bar to re-admission after the person leaves the United States and seeks a visa or permission to renter the United States. It is especially a problem to the immediate relatives of US citizens who cannot adjust status but must leave the United States and seek an unlawful presence waiver abroad before they can be issued an immigrant visa. The wait times to get an unlawful presence waiver approved can take many months or more than 1 year during which time the foreign nationals must stay outside the United States and be separated from their immediate family in the United States. Unlawful presence is not a problem for a B visa holder who marries a US citizen, does not leave the United States and seeks adjustment.
What is unlawful presence?
Under the law a foreign national is unlawfully present if the person over-stays an authorized period of stay, or is present without being admitted or paroled. INA 212 (a) (9) (B) (ii). Basically the person has no permission from the immigration authorities to be in the US or stay in the US whether it is that the end date on an I-94 has passed or the person has violated the terms of a visa such as a F-1 student who is no longer enrolled in school or a J-1 who is no longer taking part in an exchange program. In the case of a person in F-1 or J-1 status however he or she does not begin to accumulate unlawful presence until an immigration judge or immigration officer finds lawful presence.
The time for which a person is unlawfully present is legally important.
3-year and 10-year bars to readmission
Aliens who accumulate unlawful presence may be subject to a 3-year or 10 –year bar depending on the period of their unlawful presence.
180 days but less than 1 year
If an alien is unlawfully present for more than 180 days but less than one year and voluntarily departs before the start of removal proceedings such a person is barred from readmission into the United States for 3 years. Note that the bar is triggered after a voluntary departure even if the alien is granted advance parole.
More than 1 year
If the alien is unlawfully present for a year or more, then departs or is removed (deported), he or she is barred from re-admission for 10 years.
For the purpose of the 3-year or 10 year bar unlawful presence is not counted in total meaning, a person who over-stays for 3 months, leaves, re-enter and over-stays again for 4 months for a total time of more than 180 days is not subject to the 3-year bar. But if the same person over-stayed by 7 months on the second occasion, he or she would be subject to the 3-year bar.
The law exempts certain period from counting towards unlawful presence. The time during which a person is a child under the age of 18, or a bona fide application asylum is pending (unless the applicant works without authorization), under INA Section 301 family unity protection or a battered spouse or child who can prove a real connection between unlawful presence and abuse is exempt and no unlawful presence accumulates while these conditions apply.
Tolling (or suspension of) unlawful presence for good cause
The law tolls or suspends unlawful presence for no more than 120 days under certain conditions. Unlawful presence is tolled or suspended for a person who is lawfully admitted or parole into the United States, and who files a proper application for an extension of stay or change of status, and who was not employed before the application or while the application is pending.
Persons who file a proper application for adjustment of status are not subject to the 120 limitation on tolling but have the unlawful presence suspended while their application is pending.
The unlawful presence bar is just one more reason why foreign nationals should periodically consult an immigration attorney for advice. The cost of not knowing is very expensive. A person who is subject to the unlawful presence bar may seek a discretionary waiver. Waivers and the notice of intent to change the waiver regulations for aliens with qualifying United States citizen relatives will be the subject of another post.
If you have any questions please speak to a qualified immigration attorney. Feel free to email me at email@example.com. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.