If you have been living in the United States unlawfully -- perhaps after an entry without inspection or after staying past the expiration date stated on your I-94 card -- it is important for you to understand the concept of unlawful presence.
If a person accruess too much unlawful presence, he or she can become inadmissible to the U.S. -- that is, ineligible for future visas or green cards or other forms of U.S. entry or admission.
Fortunately, you cannot accrue unlawful presence before the age of 18. But as soon as you turn 18, the clock starts ticking. So keep reading to get the full picture of the issue.
What Is Unlawful Presence?
Unlawful presence refers to the period of time an individual remains in the United States without authorization. The actual definition of the term in the Immigration and Naturalization Act (INA) of the United States relates to the specific period upon being “found out” by either the immigration court system or another authority. Until this point, the individual may be overstaying a visa or within the country illegally. Both the period of overstaying and unlawful presence are calculated from the duration of stay (DOS) stamped on the visa or appropriate papers.
Penalties for Unlawful Presence
The penalties for accruing unlawful presence in the U.S. are severe. They kick in as soon as the person leaves the United States voluntarily (without deportation or removal proceedings having been started). Afterward, the person is barred from reentry to the U.S. for a set period years. The actual number of years depends upon the length of the term of the unlawful presence.
- If the unlawful presence is greater than 180 days but less than a year, the person is barred from return for three years.
- If the unlawful presence is more than one year, the individual faces a ten-year bar on reentry.
- If the unlawful presence followed an illegal entry and lasted one year or more of unlawful presence, and then the person left the U.S., and then attempted or succeeded in reentering the U.S. illegally (without inspection) OR was removed from or denied admission to the U.S., he or she is permanently banned from reentry.
If the person has grounds upon which to apply for a visa to return to the U.S., he or she may, in some cases, be allowed to apply for a waiver (legal forgiveness) of this ground of inadmissibility.
For more information on the three- and ten-year time bars, see "Three- and Ten-Year Time Bars (Inadmissibility) for Unlawful Presence."
Of course, not everyone who has accrued unlawful presence leaves the U.S. on their own. Some are deported (removed). In that case, the person will become separately inadmissible based on the prior deportation. The length of the time bar upon return becomes dependent on the reason the person was deported.
Exceptions to Accrual of Unlawful Presence
There are exceptions to who accrues unlawful presence. These include:
- Anyone under the age of 18 -- except that an illegal entry before age 18 can lead to imposition of the permanent bar described above.
- Aliens with a bona fide (not frivolous) asylum application pending a decision.
- Recipients of "Family Unity" (a status that few people have any more; meant to allow family members of amnesty applicants to wait in the U.S. while the primary applicant awaited a green card).
- Battered women and children who can show that the abuse is connected to the reason for their unlawful presence.
- Victims of severe trafficking in persons, where the trafficking was at least one central reason for the alien's unlawful presence.
- Applicants for adjustment of status (a green card) whose application is awaiting action by USCIS.
After Age 18
Once you turn 18, you need to realize that you are accruing unlawful presence and plan your immigration strategy accordingly. If you are attending or plan to attend higher education, you may wish to apply for a student visa. You will have to leave the country and return to your country of origin before doing so.
