Prior to discussing immigration and deportation, it is important to clarify that seeking asylum through immigration into the United States is absolutely a legal activity. There is a legal process which assists individuals who are seeking asylum in the United States.
There is also a legal process which assists those individuals with becoming a United States citizen if they choose to remain. Immigration laws dictate how individuals from other countries may qualify for a visa as well as under what circumstances that individual may be deported.
Individuals who have already migrated to the United States are required to abide by immigration laws. There are a significant number of immigrants who reside legally within the United States and have green cards, or permanent visas.
Although individuals who have green cards may seek to become citizens, they are also required to refrain from engaging in any activities which may cause deportation. In the context of immigration law, unlawful presence refers to when an individual is physically present in the United States who does not have proper authorization.
Unlawful presence may include cases where an individual has remained in the United States after their temporary stay time period has expired. The term, however, more commonly refers to an entry into the United States which was obtained in an illegal manner.
Examples of this may include not submitting to an inspection or utilizing fake documents in order to enter the country. Pursuant to Section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (INA), it would be considered unlawful presence if an individual is present in the United States without being admitted or paroled.
It can also be considered unlawful presence when an individual has remained in the United States past the expiration of the period of stay which was authorized by the Secretary of Homeland Security, or, the Secretary. For the purposes of removal or deportation, the amount of time which an individual is unlawfully present may be related directly to their risk of deportation.
This means that an individual who has been unlawfully present in the United States for any amount of time may be at a greater risk for deportation than an individual who has been in the country legally for a longer amount of time.
Unlawful presence may occur in different ways, including if the alien:
- Was inadmissible at the time they entered into the United States. For example, if they did not qualify for a certain visa status;
- Is in the country illegally due to a violation of a previous removal order, for example, they were previously removed and not allowed to return until 10 years after removal, but reentered the U.S. only 4 years later; or
- Have been subject to removal because of criminal charges but they have illegally avoided immigration authorities.
What Does Out-of-Status Mean?
Out-of-status is distinct from unlawful presence, as it means that the individual has lost their immigration status due to some type of violation of their visa terms. Whether an individual intends to relocate permanently to the United States or have a short visit, they will have to have a visa to do so.
There are numerous different types of visa applications, which include, but are not limited to:
- Family-based petition visas;
- Employment-based visas;
- Permanent visas; and
- Student visas.
Each immigration status is granted different rights. Examples of this would include the right to remain in the United States for a specific amount of time or the right to obtain employment while in the United States.
If an individual violates the terms of their status or visa, they may lose their immigration status. If this occurs, the individual is considered to be out-of-status.
Some common examples of conduct which may leave an individual out-of-status include, but may not be limited to when an alien:
- Works or is employed without proper authorization;
- Fails to marry the petitioner when their visa is a fiancé-based visa; and
- Fails to attend the appropriate schooling if they are under a student visa.
The consequences of being out of status may include removal. In more serious cases, it may also result in various criminal consequences. Both unlawful presence and out-of-status may result in an individual being denied eligibility for permanent residence.
What is the 3/10 Year Bar?
Aliens who are found to be unlawfully present in the United States may be subject to removal. They can also be prohibited from re-entering the United States for either 3 years or 10 years.
The prohibition on reentry is sometimes referred to as the 3/10 year bar. The 3 year and 10 year prohibitions on re-entry are found in the Immigration and Nationality Act.
The applicable provisions of the INA provide that aliens who are found to be unlawfully present in the United States for over 180 days but less than one year are ineligible for readmission for three years beginning at the date of their departure. In addition, aliens who are found to be unlawfully present in the United States for over one year and who are removed or voluntarily depart from the United States are ineligible for reentry into the United States for ten years.
The clock on both the 3 year and 10 year ban on re-entry does not begin running until after the alien departs from the United States, not at the time that the unlawful presence began. It is important to note that any aliens who are unlawfully present in the United States for a total period of time more than 1 year or who were removed and they attempt another illegal re-entry, may face a permanent bar on readmission to the U.S.
Are There Any Exceptions to Unlawful Presence Laws?
There are only a few exceptions to the 3/10 year bar for aliens who are charged with unlawful presence. When calculating the total time of the individual’s unlawful presence, none of the time in which the alien was under the age of 18 will be taken into account.
In addition, an alien who has filed under a valid asylum application is exempt while their application is pending. They cannot, however, work without authorization.
Certain victims of human trafficking or domestic abuse are exempt, which are known as statutory exemptions. In addition to the statutory exemptions, there also other categories of individuals who are deemed lawfully present, including:
- Refugees and asylees pursuant to the Immigration and Nationality Act (INA);
- Aliens who have been granted a withholding or suspension of removal under the INA;
- Aliens who have been granted a cancellation of their removal; and
- Certain categories of Haitians, Cubans, and Nicaraguans.
In some cases, filing for an adjustment of status may prevent a departure, depending upon the dates and deadlines which are involved.
Are Waivers Available for Unlawful Presence as Grounds for Removal?
In certain cases, the 3 year or 10 year bars may be waived for an alien spouse or the child of a citizen or a legal permanent resident (LPR), if they can show that the removal would result in extreme hardship to the LPR or to the citizen. In addition, immigration judges may waive the 3 year or 10 year bar on re-entry based upon their broad discretion and review of the facts of the case.
For example, the bar may be waived:
- To preserve the unity of a family;
- To promote humanitarian interests; or
- When it is in the public interest.
Do I Need a Lawyer for Help with Unlawful Presence Issues?
Unlawful presence in the United States is usually grounds for removal and may result in a 3 year or 10 year ban on re-entry. There are, however, certain instances where unlawful presence will not result in these types of strict consequences.
It may be helpful for you to consult with an immigration lawyer if you have any legal issues related to unlawful presence. Your attorney can advise you of the current laws, possible outcomes of your case, and the different options which may be available to you.
