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Out Of Status And Unlawful Presence In Green Card Cases


“Can my husband get a green card?  He doesn’t have immigration papers to live here.”

In my role as a green card attorney for immigrant families, it’s one of the most common questions I hear spouses of immigrants ask.

After all, according to the Brookings Institute, 10.5 to 12 million undocumented immigrants live in the U.S., according to most estimates.

Of this amount, American Families United estimates that 1.3 are married to U.S. citizens.

The answer, in part, depends on the immigrant’s residence history.

How Residence History Impacts Eligibility For Permanent Residence

Residence is one of the most important issues in U. S. immigration law. The circumstances surrounding an immigrant’s residence can make or break his or her ability to later become a lawful permanent resident.

The issue arises most frequently in green cards through marriage cases.  But it is also a factor quite often in child, parent, and sibling green card matters.

For immigrants living in the U.S. without proper authorization, understanding how their time spent here, visiting or residing, affects their applications for green cards is crucial.

However, in my 20+ years of experience guiding clients through the permanent residence  process, I have learned this topic is not well understood by immigrants and their spouses.

Towards that end, this article explores four residence-related provisions of law that must be grasped by green card seekers: illegal entry, overstay, unlawful presence, and unlawful status.

Although most immigrants know the basic meanings of illegal entry and overstaying, many do not comprehend how the legal rules for unlawful presence and being out of status can impact efforts to winning permanent resident status.

Yet, USCIS closely scrutinizes each green card application to ascertain if any periods of an immigrant’s residence history, coupled with the companion issues of entries and exits, have resulted in violations of immigration law.

In short, the concepts of unlawful presence and out of status can have a dramatic impact on your green card card case.

Let’s dive in.

Table Of Contents

  1. What Is Unlawful Presence?
  2. What Is Out Of Status (Unlawful Status)?
  3. The I-94 Expiration Date : A Common Error With Tourist Visa Overstays
  4. The Difference Between Unlawful Presence And Out Of Status
  5. What Are The Legal Effects Of Unlawful Presence?

What Is Unlawful Presence?

If the government claims an immigrant is unlawfully present, they are referring to someone who is physically present in the United States without authorization.

There are two general ways unlawful presence happens.

The first is known as an illegal entry.

This means that an immigrant entered the country without being admitted, paroled, or inspected.

Arriving in the United States through the hills or in the trunk of a car are examples often cited in the media.

Illegal entries also include when an immigrant enters by using fake documents, providing false information to a border patrol officer, or lying on a visa, passport, or border crossing application.

The second is known as an overstay.

An overstay occurs when an immigrant enters the U.S. with a visa to stay for a limited period of time, but fails to leave when the authorized period expires.

Once the lawful visa period ends, the immigrant who was admitted lawfully begins to accrue unlawful presence.

There are some exceptions to the unlawful presence rule. For instance, if a child enters the U.S. on a valid tourist visa with his parents, the child’s time residing here does not count as unlawful presence until he turns 18.

Other exceptions apply for immigrants with pending asylum and adjustment of status applications, as well as for some victims of domestic violence and trafficking.

What Is Out Of Status (Unlawful Status)?

On the other hand, out of status pertains to circumstances when individuals have lost their immigration status due to a violation of their visa terms.

As an example, when immigrants enter the U.S. on visitor visas, they are limited to a six-month stay. If they stay longer, they have violated their visa terms.

Other types of violations include:

  • An immigrant who enters on a fiancé visa, but fails to get married within 90 days
  • An immigrant who enters on a student visa, but does not enroll in classes

In each of these cases, immigrants are said to be out of status. When referring to such matters, some attorneys use the terminology “unlawful status”.

The I-94 Expiration Date : A Common Error With Tourist Visa Overstays

Many immigrants and their spouses confuse the expiration date of their tourist visas with the expiration date on the I-94, a document either stapled into an immigrant’s passport (if entering through land) or recorded online (if entering by plane or ship).

Here is the difference between the two expiration dates.

A temporary visa, like a tourist visa, allows a person living in another country to request permission to enter the United States at a port of entry. Generally, upon approval, a visa stamp is placed in an immigrant’s passport.  A B-1/B-2 visa is often issued for up to ten years.

This does not grant them permission to stay in the U.S. for ten years.  Rather, it means that the visa can be used within the next ten years, even for repeated visits.  But the maximum amount of time a person can remain here for a visit is limited to six months.

In fact, a visa does not guarantee admission into the United States.  Admission is at the discretion of Customs and Border Patrol officers when a person is entering the country after inspection.

The I-94 is issued once admission has been granted.  The I-94 serves as evidence of the immigrant’s date of lawful entry.  In addition, it indicates how long the person may remain in the United States.

More often than not, tourist visas and I-94s have different expiration dates.  For purposes of figuring out when an immigrant has overstayed, it is the expiration of the I-94.

Many clients, sometimes unknowingly, sometimes pretentiously, stay in the U.S. longer than they are allowed.  They assert the belief their authorized period of stay was for ten years.  Innocent mistake or not, this exposes them to being charged with being out of status and unlawful presence.

The Difference Between Unlawful Presence And Being Out Of Status

As a green card lawyer, here is an extremely critical point that all permanent residence applicants need to know.

An immigrant can be out of status but not unlawfully present.

(Be careful not to switch the concepts.  The converse is never true.  By definition, an immigrant who is unlawfully present is always out of status.)

The immigrant who is in the United States on a visitor visa may have exceeded his stay. Before his six months period ended, he applied for an extension. While he waits for a decision, he is out of status, but he is not unlawfully present.

If his extension is granted, his legal visit does not end until the addition time ends. He is no longer considered out of status.

If his extension is not granted, he is not only out of status, but also unlawfully present. It means he is in the U.S. illegally.

Ultimately, both unlawful status and unlawful presence can lead to being denied eligibility for permanent residence and lead to deportation charges.

Neither situation should be taken lightly.

In short, not providing an accurate prior residence history is the type of careless mistake pro per immigrants make, which often destroy their hopes to become permanent residents..

They’re not alone, of course.  Both seasoned attorneys and incompetent non-legal advisors like notarios also commit such errors, consciously and unconsciously..

Simply stated, such errors are a death knell in the preparation and planning of green card cases.

What Are The Legal Effects
Of Unlawful Presence?

Now that we have these concepts under our belt, it’s time to return to our U.S. citizen wife who wants to know if she can immigrate her undocumented husband.

We need to ask her some important questions:

  • How did her husband enter the United States, with or without inspection?
  • If he entered with a valid visa, when did his visa expire?
  • If his visa expired, did he fall out-of-status?
  • If he fell out of status, when how long ago did his unlawful presence begin?

In other words, to a large extent, his chances of winning a green card is contingent on his history of U.S. residence – how long ago he started to accrue time not only out-of-status, but also in unlawful presence.

The answers will determine if he must apply for permanent residence through adjustment of status or consular processing, and if he will need to win an I-601 inadmissibility waiver.

On the one hand, if her husband entered lawfully but overstayed his visa, yet never again left the United States, he may be eligible to seek a green card via the adjustment of status process at a local U.S. Citizenship and Immigration Services office.

On the other, if he entered illegally without permission – or overstayed his visa and later left the United States – he will need to process his paperwork and attend his interview at the U.S. Embassy or Consulate in his home country.  If his unlawful presence totals 180 days or more, he will need to win an I-601 waiver to be allowed re-entry to the U.S.

And winning an I-601 waiver, based on extreme hardship, is no easy chore.

In essence, until an immigrant spouse’s residence history is studied for periods of being out-of-status and unlawfully present, it is not possible to know whether a United States citizen spouse’s efforts to immigrate her spouse stands a chance for success.

Ready to take a serious and honest look at the strengths and weaknesses of your immigration case? Let’s get started with a personalized strategy and planning consultation . . .

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