What is Unlawful Presence and How can it Hurt your Immigration Case?
“Unlawful presence” occurs when a person is in the United States without an immigration status, whether that be after entering the country without documents or allowing a valid immigration status to expire and remaining in the United States. Under the Immigration and Nationality Act, there are few exceptions to accumulating unlawful presence. 8 U.S.C. § 1182 (a)(9)(B)(iii). Children under the age of 18 do not accumulate unlawful presence and neither do bona fide applicants for asylum who do not work without authorization. 8 U.S.C. § 1182 (a)(9)(B)(iii)(I) and (II). A beneficiary of family unity protection similarly does not accumulate unlawful presence, and neither do battered women and children or victims of a severe form of trafficking in persons. 8 U.S.C. § 1182 (a)(9)(B)(iii)(III)-(V).
Depending on the immigration petition, unlawful presence may be automatically waived, may complicate the application procedure, or at worse, may disqualify the applicant from receiving an immigration status. Because our immigration laws vary widely on qualifying for an immigration petition in the event you have accumulated unlawful presence, it is very important to speak with an immigration attorney prior to applying for any immigration petitions.
The Three and Ten Year Unlawful Presence Bars are common complications for an applicant for lawful permanent residency who must consular process and apply for their residency abroad at a United States Embassy, as opposed to with a local USCIS Field Office in the United States. If a person has accumulated between six months and less than one year of unlawful presence and departs the United States, that person will be barred from returning to the United States for three years, even if they have an immigration petition approved to return to the United States. If a person has accumulated one year or more of unlawful presence and departs the United States, they will be barred from returning to the United States for ten years. In some circumstances, a waiver of unlawful presence is available for those who have spouses or parents who are lawful permanent residents and would suffer extreme hardship if their family member were not admitted to the United States. If the waiver is approved, one would not have to wait abroad for three or ten years before returning to the United States. Depending on one’s immigration history, the I-601A Provisional Waiver of Unlawful Presence may be available. This waiver is helpful in avoiding prolonged family separation when consular processing through a United States Embassy, as the waiver can be applied for prior to departing the United States.
Unlawful presence and repeated entries without inspection to the United States may lead to permanent ineligibility for an immigration status, unless certain conditions are met and an additional waiver is approved. The “permanent bar” applies to those who have one year or more of Unlawful Presence or have been ordered removed, depart the United States, and then re-enter or attempt to re-enter the United States without inspection. INA § 212(a)(9)(C)(i)(I). If the “permanent bar” applies to an applicant for an immigration status, generally that person must wait abroad for 10 years and then apply for permission to return to the United States using a Form I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal.
While unlawful presence may sometimes disqualify an applicant from having an immigration status in the United States, it always important to speak with an immigration attorney to learn if you can qualify for an immigration status. The attorneys of Flecha Law have years of experience working with the undocumented community and can help you determine if you are eligible for an immigration status despite having accumulated unlawful presence.