Unlawful presence is the presence of an individual in the United States after the expiration of the period of stay that was authorized by U.S. Citizenship and Services, or the presence of an individual in the United States who never received permission to enter or stay in the country. Either of these instances triggers an individual’s unlawful presence and starts the clock on the period that they are in that status for. Perhaps the classic example of an incident that triggers unlawful presence is overstaying one’s visa. The second someone’s visa expires they must return to their country of origin, take the necessary steps to extend their visa or take the necessary steps to change their immigration status. If they don’t their sustained presence in the country is considered unlawful and they become subject to penalties because of this.
Consequences of Unlawful Presence
The length of time that a person is in the U.S. unlawfully for is important because it affects the penalties that are given for having this status. Under the Immigration and Nationality Act, any alien who was unlawfully present in the United States for more than 180 days, but less than 1 year, is banned from returning to the U.S. for at least three years from the date of their departure. Also, any alien who has been unlawfully present in the U.S. for a year or more is banned from returning to the U.S. for at least ten years from the date of their departure.
Furthermore, a person who has been in the U.S. unlawfully for more than a year, leaves, and then enters the U.S. without being admitted, is banned permanently from entering the U.S. ever again. Lastly, persons who have committed fraud or material misrepresentation are banned from the U.S. for life unless they obtain a waiver.
Possible Relief for Unlawful Presence
For someone who has unlawful presence status, their possible avenues of relief include the following:
- Nonimmigrants who are subject to the three or ten-year unlawful presence ban can seek a discretionary waiver under the Immigration and Nationality Act.
- Under certain circumstances, an immigrant who is subject to the three or ten-year ban and is a spouse, son or daughter of a U.S. citizen or permanent resident, and a fiancé of a U.S. citizen, can apply for a waiver under the Immigration and Nationality Act. The waiver applicant has to be able to show that not allowing them to enter the U.S. would result in extreme hardship to his or her qualifying relative or relatives.
- An asylum seeker who is subject to the three or ten-year ban can seek a waiver under the Immigration and Nationality Act.
- An individual who applied for entry and stay in the U.S. under Temporary Protected Status and is also subject to the three to ten-year ban can seek a waiver for humanitarian purposes, to assure family unity, or if they can demonstrate that the waiver is in the public interest.
- Waivers can be granted for qualified battered spouses, parents, and children if there is a sufficient connection between the abuse, the unlawful presence, the departure or removal of the foreign national, and the subsequently attempted reentry.
Mona Tehrani has significant experience in immigration matters and can assist you with any issues you have regarding unlawful presence. Please contact us to get more information or to schedule an appointment.