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Out-Of-Status And Unlawful Presence

The Impact Of Unlawful Presence Or Being Out-Of-Status On Green Card Cases

The Immigration Consequences Of  Residence History In Green Card Cases

Although most immigrants understand the meanings of illegal entry and overstaying, many do not grasp how the legal rules for unlawful presence and out of status can impact efforts to winning permanent residency.

The United States Citizenship and Immigration Services (USCIS), the government agency responsible for processing green card applications, closely scrutinizes immigrants’ history of residence to ascertain if such violations of immigration laws have occurred.

Since the concepts of unlawful presence and out of status can have a vastly different impact on your green card card case, this article outlines key issues you should know about their points of divergence.

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.

This means he or she entered the country without being admitted, paroled, or inspected.

The definition of unlawful presence also includes situations where an immigrant entered using fake documents or providing false information, or remained in the U.S. after the period of his or her temporary visa expired.

Any foreign national who is admitted accrues unlawful presence as of the date an immigration judge or USCIS terminates their status,

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 Difference Between Unlawful Presence And 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.

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, your prior residence history should not be carelessly ignored in the preparation and planning of your green card case.


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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