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The Basics of Unlawful Presence

The Basics of Unlawful Presence

Unlawful presence accrues any time during which a person is present in the United States without being admitted or paroled and is at the heart of many other immigration concepts, including various grounds of inadmissibility, including the three and ten-year bars. This article covers the basic concepts of unlawful presence.

What is Unlawful Presence

Unlawful presence most commonly occurs in two situations. First, when someone enters the United States without inspection (without being admitted or paroled), they will start accruing unlawful presence immediately. Second, when someone comes to the United States with a visa and is inspected and admitted at a port of entry - they will begin accruing unlawful presence if they overstay their visa.

To Whom Does Unlawful Presence Not Apply?

One thing to understand is that Unlawful Presence is not the same thing as being in ‘Unlawful Status’ (or ‘Out of Status’). It is possible to be in ‘Unlawful Status’ but not accruing Unlawful Presence. Additionally, there are certain classes of people and specific time frames during which people will not accrue unlawful presence, including:

  • Minors: Individuals under the age of 18 do not accrue unlawful presence;
  • Asylum Applicants: Bonafide asylum applicants do not accrue unlawful presence from the time of the affirmative filing, through a final decision on the case, unless the applicant worked without permission;
  • VAWA Applicants: Self-petitioners, under the Violence Against Women Act, do not accrue unlawful presence if there was a correlation between the abuse, the unlawful presence, and any subsequent departures from the United States;
  • U-Visa Recipients: U-visa recipients do not accrue unlawful presence while in deferred action, granted in connection with a pending U-visa application;
  • T-Visa Recipients: T-visa applicants will not accrue unlawful presence if the “severe form of trafficking” was a primary reason for the presence;
  • April 1, 1997: Periods of Unlawful Presence accrued prior to April 1, 1997 are irrelevant.
  • Adjustment of Status Applicants:Properly filed Adjustment of Status applications will toll the accrual of unlawful presence;
  • Deferred Action: Individuals granted deferred action do not accrue unlawful presence; however, deferred action does not erase periods of previously accrued unlawful presence;
  • Conditional Residents: Conditional residents will begin to accrue unlawful presence, on the date that their two-year green card expires, unless they timely file form I-751. A conditional resident, who late files form I-751, will not have accrued unlawful presence if USCIS or the Immigration Judge accept the late filing.

Why Does Unlawful Presence Matter?

Unlawful presence is relevant in the context of other immigration laws. Most importantly in the context of grounds of inadmissibility, including the three and ten-year bars and the permanent bar.

Three Year Bar: Any applicant who was unlawfully present in the United States for more than 180 days, but less than a year, who departs the United States and again seeks re-admission within three years- is inadmissible.

Ten Year Bar: Any applicant who was unlawfully present in the United States for one year or more, who departs the United States, and again seeks re-admission within ten years-is inadmissible.

Permanent Bar: Any applicant who has been unlawfully present in the United States for an aggregate period of more than one year, who departs, and then enters (or attempts to enter) unlawfully-is permanently inadmissible.

Please contact a knowledgeable and experienced immigration attorney if you believe that you may have accrued unlawful presence, which resulted in a ground of inadmissibility.  Our attorneys at Landerholm Immigration, APC, have extensive experience in cases involving grounds of inadmissibility and waivers. Please feel free to call us at 510-488-1020 to see how we can help!   

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