IMMIGRATION NEWS & VIEWS:      

ARE YOU “UNLAWFULLY PRESENT” IN THE UNITED STATES?

      By law, a person is unlawfully present in the United States after if he remains here after the I-94 expires or he is present in the United States without being admitted or paroled.

      The United States Citizenship and Immigration Service interprets time "unlawfully present" to include any time spent in the United States by aliens after they have violated the terms and conditions of any form of nonimmigrant status, because time spent in violation of status is not authorized.

      Time in "unlawful presence" began to accrue on April 1, 1997. For example, although an alien may have been in the United States illegally for one year prior to April 1, 1997, as of April 2, 1997, the same alien has accrued only one day of "unlawful presence" for purposes of section 212(a)(9)(B).

      For purposes of section 212(a)(9)(C), time in "unlawful presence" may accrue prior to April 1, 1997. Thus, the same alien who would only have one day of unlawful presence for purposes of section 212(a)(9)(B) on April 2, 1997, would have one year and one day of "unlawful presence" for purposes of section 212(a)(9)(C).

      In addition, time spent "unlawfully present" in the United States, is measured cumulatively for  section 212(a)(9)(C), but not for section 212(a)(9)(B). For example, an alien who was "unlawfully present" in the United States for 5 months, departed the United States, returned, and was "unlawfully present" for 2 more months would have accrued 7 months of "unlawful presence" for purposes of section 212(a)(9)(C), but not for purposes of section 212(a)(9)(B).

      Unlawful presence may be triggered either by overstaying the time authorized or by entering into an activity that violates the terms or conditions of status. For example, an alien present on a visitor visa begins to accrue unlawful presence on the day that he or she enters into unauthorized employment. Unlawful presence is also triggered by the commission of a criminal offense that renders an alien inadmissible or removable.

When does an alien stop being unlawfully present?

      Once an alien goes out of status, he or she is "unlawfully present" until the Service restores status or he or she leaves the United States.

      Section 212(a)(9)(B)(iii) states instances in which an alien does not accrue "unlawful presence" for purposes of section 212(a)(9)(B) as follows:

1. Time in which an alien is under 18 years of age.

2. Time during which an alien has a bona fide application for asylum pending (unless the alien was employed without authorization at any time during the period that the application was pending)

3. Time during which an alien is a beneficiary of family unity protection .

4. For those admitted or paroled - time during the pendency of a non-frivolous application for change or extension of status (up to a maximum of 120 days)

5. Those who qualify as a battered spouse or child as provided in section 212(a)(9)(B)(iii)(IV) of the Act.

      These exceptions are not applicable when considering "unlawful presence" for purposes of section 212(a)(9)(C).

      The exception for up to 120 days during the pendency of an application for change/extension of status only applies when the application is submitted prior to the expiration of status by a person who has been lawfully admitted or paroled into the United States. It includes the time during the pendency of an application for change/ extension of status and the application for "adjustment" of status.

      "Unlawful presence" continues to accrue while the alien is in removal proceedings and during the period granted for voluntary departure by the Service or an immigration judge.

      Aliens with pending change or extension of status applications after the 120-day period and aliens present but not yet removed after a final removal order will not be considered to be in a period of stay "authorized by the Attorney General."

Impact of these Grounds of Inadmissibility on Applications for Adjustment of Status.

      Aliens inadmissible pursuant to 212(a)(6)(A) of the Act are eligible to apply for adjustment of status under section 245(i) of the Act.

     Aliens inadmissible pursuant to section 212(a)(9) of the Act are ineligible for adjustment of status under section 245 of the Act, subject to the waiver and exception provisions of those grounds of inadmissibility.