What Is An Unlawful Presence?

unlawful presence
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Unlawful Presence

Immigration is a very complex process, and there are a lot of ways in which it can go wrong for an individual. Every person wants to live a comfortable life and secure the future of their children. Sometimes, that requires immigrating to a foreign country with better economic stability. The reason many people apply for immigration to the U.S. every year is the country’s economic strength. Over the years, many families have moved to the U.S. to follow the American Dream. Many of them ended up becoming successful in America and living comfortably. But there are also those who don’t manage to get through the immigration process or get fired from their job when they are on a nonimmigrant worker visa. Such people end up staying in the U.S. But this unlawful presence can result in them getting barred from entry to American soil for up to ten years.

What is Unlawful Presence?

A person can be in the U.S. for a long time without becoming an immigrant. If they are studying in America or work in an American company, they will be allowed to live in the country for a specific period of time. But nonimmigrant visas have their limits. For instance, if you are studying in America, you must leave once your education is complete. If you are on American soil on a nonimmigrant worker visa and you get fired from your job, you will have to go back.

But what happens when a nonimmigrant continues to live in the U.S. even after the expiry of their visa? They will be accruing an unlawful presence, and removal proceedings can be initiated against them at any time. Once the proceedings begin, the person will have to appear before an immigration judge. Unlawful presence time matters when it comes to making decisions like the removal of an individual from the U.S. and the bars to admission.

accruing unlawful presence
unlawful presence

What is Bars to Admission?

The period of time a person spends in the U.S. territory after their visa has ended can decide their fate. Three to ten years entry ban can be imposed on the individual who has been in the country illegally. Here are the details immigration judges pay attention to when making their decision:

  1. If an alien who is not a lawful permanent resident of the country remained in the U.S. after they accrued unlawful presence for more than 180 days but less than one year during a single stay, then they will be barred from entry for three years.
  2. If an alien stayed in the country for a year or more after they accrued unlawful presence, then they will face a ten-year ban.
  3. In certain cases, a person may be inadmissible forever. It happens when they stay in the U.S. for a year or more after they accrued unlawful presence and then tried to reenter the country without being admitted or paroled by a DHS officer.

The period of inadmissibility begins when a person departs or gets removed from the U.S. It does not matter if they depart before the removal proceedings begin. Once the period of inadmissibility begins, a person cannot apply for adjustment of status or receive a nonimmigrant visa. They also cannot submit an immigration application to USCIS during this period.

Waiver of Inadmissibility:

In certain cases, people can apply for a waiver of inadmissibility. But it depends on the immigration benefits they were receiving in the U.S. They will have to submit evidence to USCIS to prove that they deserve to renter the country after being removed from it. For instance, a person should prove that their family member who is an American citizen will face extreme hardship if they are not granted entry by USCIS. People can also apply for waivers if they were misrepresented during the removal proceedings. Waivers can also be issued to people who were victims of alien smuggling. But USCIS should be presented with concrete evidence, or they won’t accept the application.

unlawfully present
unlawful status

Legal Advice:

Whether you are sending in your application to USCIS or preparing for removal proceedings, it is important to get the right legal help. There are a lot of people who can’t get their status adjusted or apply for an unlawful presence waiver because they didn’t get the right legal advice. There are a lot of forms available on the American government’s website for those who want to apply for waivers. But if a person does not know how to apply or what information to provide to USCIS, they will not be able to get any waivers.

Immigration Laws

Individuals cannot be familiar with every aspect of immigration laws. But they can get the help of experts and get reunited with their family in the U.S. This is why it is important to hire an experienced immigration lawyer who can guide people that want to apply for their visa status or have to face removal proceedings. USCIS and government websites can provide you with helpful guidance regarding the hiring of an attorney. A lawyer can also help the applicants with their green card applications and non-immigrant status adjustment. So, it is better to hire an experienced professional when you need help. Read our other blog about the percentage rate of approved visas in the US.

What to Do After Accruing Unlawful Presence?

It is better to avoid becoming an illegal resident at all costs. If you accrued unlawful presence, you will not only be barred from entry, but you also won’t be able to apply for adjustment of status or for reentry. The time period of unlawful presence bars can be pretty long, and waivers cannot be easily obtained by aliens.

However, if you do end up with your status violation, it is good to come up with the right strategy to get admission in the U.S. again. Begin with focusing on the ground of inadmissibility and whether that makes you eligible for waivers or not. Although the application forms are available on USCIS and government websites, you may have trouble filling them yourself. Hire a qualified immigration lawyer before you decide to file an application form. The lawyer will discuss the ground of inadmissibility with you and then tell you which waivers if any, you can apply for.

It is important to prepare all evidence whether you are applying for waivers on the basis of financial hardship or because you are a minor child of American parents. Gather all the necessary documents and get them translated if they are not in English. If you can prove your connection with your family, you will be able to apply for lawful admission into the U.S.


Students can discuss the matter with their school before filling an application form. Individuals with American spouses and parents can apply for extreme hardship waivers. It can be months before you are allowed admission in the U.S. again. So, it is better to avoid the violation of unlawful presence rules. The federal government is very strict when it comes to such issues. International students and foreign workers will have to follow the policies in order to stay in the U.S.

Rejection of Application

If your application for waivers is rejected, then it will be even more difficult to get back in the U.S. Although the denial of applications can also be challenged, it does not always lead to a good outcome. A student will not be able to study if they have an unauthorized presence in the country. Every valid visa holder must be familiar with the terms of their status. It is the only way they can avoid violation of the law and continue to live in the U.S. legally.

unlawful presence waiver

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