What is Unlawful Presence?

There is a lot of confusion in immigrant communities about the meaning of unlawful presence and the ramifications of unlawful presence on a person’s opportunities to immigrate to the United States.

Unlawful presence is any time spent by a person in the United States when that person came to the U.S. illegally. It can also accrue when a person’s visa expires and he or she remains in the United States.

The problem with unlawful presence is that it triggers an inadmissibility ground under the Immigration and Nationality Act (INA). If a person is inadmissible to the United States under the INA, he will not be able to enter the country unless he obtains a waiver.

Under INA § 212(a)(9)(B), a person is inadmissible to the United States for a period of 3 years if he or she was previously unlawfully present in the U.S. for at least 180 days. Similarly, a person is inadmissible for a period of 10 years if he or she was unlawfully present in the country for one year or more.

One tricky aspect of unlawful presence is that the 3-year and 10-year inadmissibility bars are only triggered once a person leaves the country. For this reason, the trouble really starts when someone stays in the U.S. illegally for a period greater than 6 months, then leaves the country. If that person attempts to reenter the country, he may be found inadmissible and denied entry.

A person who previously entered the country illegally and who accrued at least six months of unlawful presence may still be eligible for a waiver of the inadmissibility bar. In order to be eligible for the waiver, you must be the spouse, parent, or unmarried son or daughter of a U.S. citizen. You must show that this person would suffer extreme hardship if you were denied admission to the United States. Please consult an experienced immigration attorney if you are seeking to apply for a waiver of unlawful presence.

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