Unlawful presence

Navigating Unlawful Presence in U.S. Immigration: What You Need to Know

I. Introduction

The U.S. immigration system is a labyrinth of laws, policies, and procedures that can be daunting to navigate. Whether you’re seeking to visit, work, or settle in the United States, understanding the nuances of immigration law is crucial to ensuring your journey is both legal and smooth. This article aims to shed light on key aspects of immigration rules, including the concept of unlawful presence, the implications of overstaying your visa, and the legal allowances that come with pending immigration applications. We’ll also dispel some common myths that can lead to severe legal repercussions. This information serves as a foundational guide, but it’s essential to consult with an immigration attorney for advice tailored to your specific situation.

Navigating the U.S. immigration system is a complex process filled with intricate laws and regulations

Unlawful presence

II. What is Unlawful Presence?

A. Definition of Unlawful Presence

Unlawful presence commences when a non-U.S. citizen begins residing in the United States without authorization from immigration authorities. This occurs most commonly in two scenarios:

  1. Overstaying a Visa: When the authorized period of your visa expires, but you remain in the U.S. beyond that date.
  2. Entry Without Inspection (EWI): This refers to entering the U.S. without going through a proper port of entry or without inspection by U.S. Customs and Border Protection (CBP).

Being unlawfully present in the U.S. is a violation of federal law and places the individual at risk of deportation.

B. Legal Implications: 3- and 10-year bans

Accruing unlawful presence can lead to severe immigration consequences that can hinder future opportunities for legal entry into the United States.

  • 3-Year Ban: If you accrue more than 180 days but fewer than 365 days of unlawful presence and then voluntarily depart the U.S., you may be subject to a 3-year ban from re-entry.
  • 10-Year Ban: Accruing 365 days or more of unlawful presence and then departing the U.S. makes you ineligible for re-entry for a period of 10 years.
  • Permanent Bar: In extreme cases, such as re-entry after a prior removal order or accruing a total of more than one year of unlawful presence over multiple stays, a permanent ban could be instituted.

C. Exceptions: Minors, Asylees, etc.

While the rules on unlawful presence are strict, there are important exceptions:

  • Minors: Unlawful presence does not accrue for individuals who are under the age of 18. The clock starts only once the individual turns 18.
  • Asylees: Those who have applied for asylum and are awaiting a decision are usually not considered to be accruing unlawful presence during this period.
  • Temporary Protected Status (TPS): This is a temporary immigration status provided to nationals of countries experiencing severe crises, such as natural disasters or armed conflict. During the validity of TPS, unlawful presence does not accrue.
  • Immediate Relatives: For those married to U.S. citizens, or who are the parents or minor children of U.S. citizens, there may be some leniency in terms of unlawful presence while waiting for an adjustment of status.
  • Cure through Adjustment: In some cases, certain applicants may “cure” periods of unlawful presence through successful adjustment of status, although this is case-specific and should be discussed with an immigration attorney.

III. Authorization to Stay During Applications

A. Explanation of Pending Applications and How They Affect Legal Status

Pending immigration applications often confer a temporary legal status to the applicant, allowing them to remain in the U.S. while their case is being adjudicated. It’s crucial to note that a pending application does not erase prior periods of unlawful presence, but it may stop the accrual of additional unlawful days. During this time, departure from the U.S. without authorization could trigger bans related to unlawful presence.

B. Types of Applications: Adjustment of Status, Extension, etc.

Various types of applications can confer a temporary authorization to stay:

  • Adjustment of Status: For individuals already in the U.S., applying to adjust their status to a permanent resident generally allows them to remain while the application is pending.
  • Extension of Status: Those on non-immigrant visas like tourist or work visas can apply for an extension, which permits them to stay during the adjudication process.
  • Change of Status: This application allows individuals to change from one non-immigrant category to another, e.g., from a student visa to a work visa.
  • Asylum Applications: Filing an asylum application typically stops the accrual of unlawful presence while the application is pending review.
  • Deferred Action for Childhood Arrivals (DACA): While not a pathway to permanent residency, DACA grants a temporary reprieve from deportation and may come with work authorization.

C. Case Scenarios: Effect on Employment and Travel

  1. Employment
  • Adjustment Applicants: May be eligible to apply for an Employment Authorization Document (EAD) while waiting.
  • H-1B Extensions: If an extension is pending, the applicant can continue working for up to 240 days beyond the expiration of the previous H-1B status.
  • Asylum Seekers: Can apply for employment authorization if their case has been pending for 180 days without a decision.
  1. Travel
  • Advance Parole: Some pending applicants, such as those undergoing adjustment of status, may apply for advance parole to travel abroad without triggering unlawful presence-related bans.
  • Non-immigrant Extensions: It’s generally not advisable to travel while an extension is pending, as re-entry may be denied.
  • Asylum Seekers: Leaving the U.S. without advance authorization could result in the abandonment of the asylum application.

IV. Risks of Unlawful Presence

A. Consequences of Overstaying

Overstaying the authorized period of admission creates immediate and long-term risks:

  • Immediate Removal: Overstayers are subject to deportation at any time after their authorized period expires.
  • Ineligibility for Change/Extension of Status: Overstaying generally disqualifies you from changing or extending your current visa status within the U.S.
  • Impact on Future Visa Applications: Overstaying can result in a denied visa in the future, even for short tourist visits.
  • 3- and 10-Year Bans: Accumulating significant periods of unlawful presence (180 days or more) and then leaving the U.S. triggers re-entry bans.

B. Risks of Working Without Authorization

Working without proper authorization is a severe violation of U.S. immigration laws and poses additional risks:

  • Deportation: Unauthorized employment is a ground for deportation and can impact your ability to return to the U.S. in the future.
  • Ineligibility for Future Visas: Being caught working without authorization can result in being barred from obtaining future U.S. visas of any type.
  • Financial Penalties: Employers also face risks in hiring individuals without work authorization, including steep fines and potential criminal charges. This could dissuade employers from hiring you even when you gain lawful status.
  • Impact on Adjustment Applications: Unauthorized employment can complicate future immigration applications, including adjustment of status to become a permanent resident.

V. Common Myths and Misconceptions

A. Myth 1: Overstaying a Visa for a Short Period is Fine

Contrary to popular belief, even a short overstay can have significant consequences. While some people believe a few extra days won’t matter, immigration laws don’t offer a “grace period.” Overstaying by even one day puts you out of status, making you subject to immediate deportation and affecting future visa applications.

B. Myth 2: Marriage to a U.S. Citizen Instantly Grants Legal Status

While marriage to a U.S. citizen can provide a pathway to legal status, it is not immediate or automatic. The U.S. citizen spouse must file a petition on behalf of the foreign spouse, who must then go through a series of legal procedures, including interviews and background checks. There may also be waiting periods, especially if the foreign spouse initially entered the U.S. without inspection.

Furthermore, USCIS scrutinizes these marriages closely to ensure they are bona fide and not solely for the purpose of obtaining immigration benefits. If deemed fraudulent, both parties can face severe penalties, including deportation for the foreign spouse and criminal charges for the U.S. citizen.

VI. Conclusion

Navigating the U.S. immigration system is a complex process filled with intricate laws and regulations. Understanding the critical concepts of unlawful presence, authorized stay during pending applications, and the risks associated with overstaying or working without authorization can significantly impact your immigration journey. Moreover, being aware of common myths and misconceptions can prevent costly mistakes and legal consequences. Consulting with an experienced immigration attorney can offer personalized guidance and significantly increase the chances of successfully achieving your immigration goals. Always seek professional advice to navigate the complexities of immigration law effectively.