Immigration Basics: What is "Unlawful Presence," How Does it Affect My Application and What Are the Consequences?

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WHAT IS "UNLAWFUL PRESENCE?"

On April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), a harsh and extremely restrictive anti-immigration law took effect, which has left a dramatic impact on families and businesses for decades to come. Amongst the many restrictive provisions of IIRIRA, Congress established the concept of unlawful presence, which is defined as the period of time when you are in the United States without being admitted or paroled or when you are not in a "period of stay authorized by the Secretary."

Essentially, if you've crossed the border without interacting with Customs and Border Protection ("CBP") (i.e., you did not pass through a border checkpoint or fly into a U.S. airport) or you've entered the U.S. on a valid visa (tourist, student, etc.), but overstayed the time allotted on your visa, you begin to accrue unlawful presence. The time that unlawful presence begins to accrue will be either from the date you entered the country without being properly admitted or the date after which your valid visa expired.

For the purposes of applying for immigration benefits, accruing unlawful presence is considered a ground of inadmissibility and thus, a potential hurdle in an application for a greencard or other form of relief. Grounds of inadmissibility are factors, such as criminal convictions, that the federal government can rely upon to deny your application.

ARE THERE ANY EXCEPTIONS TO ACCRUING UNLAWFUL PRESENCE?

The INA provides exceptions for accrual of unlawful presence to the following individuals:

Asylees: Time while a non-frivolous asylum application is pending is not counted as unlawful presence.
Minors: Children do not accrue unlawful presence while they are under age 18.
Family Unity Beneficiaries: Individuals with protection under the Family Unity program, as provided under section 301 of the Immigration Act of 1990, do not accrue unlawful presence while that protection is in effect.
Battered Spouses and Children: Self-petitioners under the Violence Against Women Act (VAWA) do not accrue unlawful presence if they can show a connection between the status violation and the abuse.
Victims of Severe Forms of Trafficking: Trafficking victims who can show that a severe form of trafficking was at least one central reason why they were unlawfully present in the United States will not be considered inadmissible due to unlawful presence.

WHAT ARE THE CONSEQUENCES OF ACCRUING UNLAWFUL PRESENCE?

3-Year, 10-Year and Permanent Bars to Admissibility

Accruing unlawful presence comes with many consequences, some more severe than others. The most severe being the 3-year, 10-year and permanent bars to admissibility into the United States. What this means is that if you've accrued unlawful presence for certain periods of time, and depart the United States, you become ineligible to apply for immigration benefits for the duration of the respective bars to admissibility. According to the Immigration and Nationality Act ("INA"), you may be barred from being admitted to the United States for:

3 Years, if you depart the United States after having accrued more than 180 days (6 months), but less than one year of unlawful presence during a single stay and before removal proceedings begin;
10 Years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay, regardless of whether you leave before, during, or after removal proceedings; or
Permanently, if you reenter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States

Adjustment of Status v. Consular Processing

You might be thinking, "okay, this only applies if I depart the U.S., so I'll just file my application here, I won't leave and then these bars wont apply to me, right?" Unfortunately, the federal government already thought of this and created two separate systems for applying for greencard benefits: Adjustment of Status and Consular Processing. The major difference between the two is that Adjustment of Status allows you to apply for benefits without having to leave the U.S., while Consular Processing requires that you return to your home country and complete your applications there.

Unfortunately, Adjustment of Status is not available to anyone who entered the country without being properly admitted. Likewise, accruing unlawful presence will also prevent you from adjusting status in the U.S., unless you are an immediate relative (spouse, child under 21 years old, or parent) of a U.S. citizen, who entered the U.S. legally and otherwise doesn't have any others grounds of inadmissibility, for which a waiver is not available.

For everyone else, if you've accrued unlawful presence, your only available option to obtain legal permanent residence status (i.e., a greencard) is via Consular Processing. This, of course, comes with it's own risks, the most obvious one being that if your application is denied, you cannot just simply return to the U.S.

I-601A, Provisional Unlawful Presence Waiver

If you do not qualify for Adjustment of Status, and accrued unlawful presence, then an additional burden on top of Consular Processing is that you must apply for a waiver of your unlawful presence. The I-601A Provisional Unlawful Presence Waiver requires that you show an extreme hardship to your qualifying relative (U.S. citizen or legal permanent resident spouse or parent), if you are not permitted to enter the U.S. or if your spouse or parent is required to return to your home country if your application is denied. It is important to note that no other relatives, including U.S. citizen or legal permanent resident children, can be considered as qualifying relatives for the purposes of this waiver request.

In addition, the extreme hardship standard is quite difficult to actually meet, as the mere fact of potentially being separated from your family is not alone sufficient to warrant a finding of extreme hardship. This means that you must provide evidence above and beyond this fact in order to meet the high burden of this standard. Fortunately, if unlawful presence is your only ground of inadmissibility, you may apply for this waiver while still in the United States. However, if the waiver is denied, there is no form of appeal and the decision is final, which could very well mean the end of the application process for you.

If you believe that you might accrue or have accrued unlawful presence and you are unsure how that might affect your status or application process moving forward, you should speak with a competent immigration attorney, who will be able to guide you through your options and advise you further on the effects of unlawful presence.

Disclaimer: This blog post and similar posts are not to be considered as providing legal advice. The discussion here is meant for educational and informational purposes only and shall not create an attorney-client relationship with the readers of this content.