Understanding The Difference Between Unlawful Status And Unlawful Presence

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For aliens lawfully present in the U.S. it is important to understand the difference between being in an unlawful status or accruing unlawful presence in the country.

The “status” is determined by the purpose for which the foreign person has been admitted in the U.S. (visitor, student, employee, investor, etc.). When a specific status expires, the alien is no longer in a lawful status and is eligible for deportation.

Section 212(a)(9)(B)(ii) of the Immigration Nationality Act (the “Act”) defines “unlawful presence” when the alien is present in the U.S. (i) after the expiration of the period of stay authorized by the Secretary of Homeland Security (generally noted on form I-94), or (ii) without being admitted or paroled. Besides being deportable, the alien is then inadmissible in the country for three or ten years depending on the duration of the previous overstay.

Although these concepts are related (one must be present in an unlawful status in order to ac-crue unlawful presence), they are not the same. In fact, there are situations in which an alien who is present in an unlawful status nevertheless does not accrue unlawful presence. As a matter of prosecu-torial discretion, Department of Homeland Security (“DHS”) may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending. In this sense, the alien’s re-maining can be said to be “authorized.” However, the fact that the alien does not accrue unlawful pres-ence does not mean that the alien’s presence in the United States is actually lawful.

EXAMPLE 1

An alien is admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2009. The alien remains in the United States after the Form I-94 expires. The alien’s status becomes unlawful and be-gins to accrue unlawful presence on January 2, 2009. On May 10, 2009, the alien properly files an application for adjustment of status. The filing of the adjustment application stops the accrual of un-lawful presence. However, it does not “restore” the alien to a substantively lawful immigration status. The alien is still deportable because of remaining in the U.S. after the expiration of the nonimmigrant admission.

EXAMPLE 2

An alien is admitted as a nonimmigrant, with a Form I-94 that expires on January 1, 2009. On October 5, 2008, he properly files an application for adjustment of status. He does not, however, file any appli-cation to extend his nonimmigrant stay, which expires on January 1, 2009. The adjustment of status application is still pending on January 2, 2009. On such date, the alien becomes subject to removal because he has remained after the expiration of his nonimmigrant admission. For purposes of future inadmissibility, however, the pending adjustment application protects the alien from the accrual of un-lawful presence and prevents triggering the three or ten years bar.

Due to significant implications on permanence or entry in the U.S., it is important to avoid los-ing the lawful status and/or to remain in the country beyond the authorized period of stay. Waivers of deportation or inadmissibility are available but are limited to narrow circumstances.
Our firm can help you evaluate your situation and eventually take action to preserve your im-migration status. Call us today to schedule an appointment with an immigration attorney.

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