Consequences of a noncitizen falling out of legal immigration status and accumulating unlawful presence in the United States

Under immigration law there two legal concepts that could potentially bar a noncitizen of the United States in seeking an immigration benefit. Legal or lawful immigration status relates to the concept of a noncitizen being present in the United States under some legal status. Unlawful presence is closely related to the concept of lawful immigration status, but typically refers to the amount of time a noncitizen is present in the United States without lawful immigration status.

A noncitizen can be present in the United States without status either by overstaying the time granted by an immigration official to be present in the United States; committing an act that violates an immigration law or entering the United States through a land border without being inspected and allowed admission by an immigration officer.

The most typical way unlawful presence will affect a noncitizen is based on the period the noncitizen has been present in the United States with no legal immigration status.

This bar results after a noncitizen’s presence in the United States without lawful immigration status for a period of 6 months or more, but less than 1 year. The bar is activated once the noncitizen departs the United States resulting in the noncitizen being barred from applying for an immigration. benefit including a visa or green card for a period of 3 years.

This bar results after a noncitizen has been present in the United Sates without lawful immigration status for a period of 1 year or more and activates once the noncitizen departs the United States resulting in the noncitizen being barred from applying for an immigration benefit for 10 years.

Meaning that as long as the noncitizen is present in the United States, the noncitizen is not subject to the bar until departure occurs. This does not mean that the noncitizen in any way is authorized or encouraged to remain in the United States without status. However, this element of the law may serve to aid some noncitizens in being able to apply for a green card under certain circumstances.

Under the current interpretation of the law, a departure pursuant to a grant of advanced parole is not considered the type of departure that activates the bar. Advanced parole is granted in limited circumstances typically arising from the eligibility form a different and temporary immigration benefit such as the granting of a discretionary form of relief from deportation such as Deferred Action or Temporary Protected Status or based on eligibility for applying for a green card within the United States.

If the noncitizen serves the pertinent 3 or 10 years outside of the United States, the bar ends, and the noncitizen is again eligible to seek an immigration benefit.

If the noncitizen is seeking a temporary visa to re-enter the United States before serving the full term of the bar, the noncitizen can seek a waiver of the bar through a waiver recognized under the immigration law identified as section 212(d)(3) of the Immigration and Nationality Act. You can read more details about this bar here. Note that this waiver is only applicable to cases where noncitizens are only applying for a temporary travel visa.

If the noncitizen is seeking a green card, there is another more stringent waiver potentially available. However, this waiver will require the noncitizen to have either a legal permanent resident or U.S. citizen parent or spouse to demonstrate an extreme level of hardship on their qualifying relative in the event the noncitizen is not allowed to re-enter the United States. You can review our discussion regarding one of the most common waivers available to waive the bars here.

If a noncitizen is present in the United States pursuant to a lawful immigration status, the noncitizen will be allowed to apply for the green card without having to depart the United States. A noncitizen who has fallen out of status will therefore be disqualified. However, there a few exceptions to the rule that allow some noncitizens to still apply for a green card within the United States.

• A green card application based on a family-based immigrant petition by an immediate relative.

One exception to the rule applies to a noncitizen who was inspected and lawfully admitted into the United States and who is petitioned by an immediate relative. You can review our discussion regarding eligibility based on a family based petition here.

• A green card application based on either a family or employment based immigrant petition where the noncitizen had been the beneficiary of an immigrant petition in the past.

Another exception to the rule applies to noncitizens that have been the beneficiary of a past immigration green card petition in the past before one of two sunset dates. January 14, 1998 and then April 30, 2001. You can review our discussion regarding eligibility for adjustment of status based on Immigration and Nationality Act section 245(i) here.

• A green card application based on an employment immigrant petition where the beneficiary’s time out of status did not exceed 180 days.