• James C. Hawkins

What is Unlawful Presence?

Many people who have entered the United States illegally or have overstayed their visas may have limited ability to obtain lawful permanent residence. Lawful permanent residence is also known as a green card. If you are in one of these categories you will need to adjust your status to achieve permanent residence.


Understanding Unlawful Presence


According to the U.S. Citizenship and Immigration Services (USCIS), unlawful presence is “the period of time when you are in the United States without being admitted or paroled or when you are not in a period of stay authorized by the Secretary.” Unlawful presence is one of the most misunderstood concepts because it is rather complicated. Importantly, not all those who are in the U.S. unlawfully are barred from re-entry.


There are three main categories of unlawfully present immigrants in the United States. These include those who leave before they reach 180 days of unlawful presence, those who leave before one year and those who leave after more than one year. Only those who are unlawfully present for more than 180 days are automatically barred from re-entry. Importantly, if you have been unlawfully present for less than 180 days, you may still need to reapply for a new visa since it was likely canceled.


New Rule for Those Who Unlawfully Stay Six Months or More


When a person is unlawfully present for more than six months but less than a year, he or she is barred from re-entry for a period of three years. After the three-year mandatory ban, the ban is no longer in effect. If a person does not voluntarily depart the United States after unlawfully staying for more than a year, he or she is barred from re-entry for a period of 10 years. There is a great deal of confusion over how the bar on re-entry works with immigration claims.


Generally, when a person originally entered the United States legally and makes a real attempt to extend the status, the unlawful presence time does not begin to accrue. The same applies to an asylum claim unless the immigrant is not unlawfully employed. If so, every day that the person is employed without authorization counts as a day of unlawful presence.


Failing to Extend or Missing a Court Date


If you fail to request an extension on your legal status and it expires, you are accumulating unlawful presence time. If you are in the process of going through immigration court but fail to attend a scheduled hearing you will immediately be considered inadmissible for a period of five years. Therefore, if you have received a request to appear, you cannot simply ignore it. You must appear at the scheduled date and time. Also, keep in mind that the immigration judge cannot change unlawful presence time that you have already accumulated.


Unlawful presence is a situation that can be complicated and difficult to understand. Get the

immigration help you need as soon as possible. Contact BlackHawk Immigration Consulting to discuss your immigration needs.

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