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Differences Between Unlawful Presence and Unlawful Status

Unlawful spelled out with die pieces

These are two immigration concepts addressing the physical presence of a noncitizen in the United States. The two concepts are very similar to each other but are not the same. Unlawful status is the concept where a noncitizen is present in the United States without a lawful immigration status. The concept of unlawful presence is the period of time the noncitizen is present in the United States without a lawful immigration status.

Although similar, the main reason for the distinction is that unlawful presence is typically used to determine whether a certain period of time, a noncitizen has been present in the United States, without a lawful immigration status, will trigger a bar from seeking an immigration benefit. This is typically seen in cases where a noncitizen has been present without lawful immigration status for a period of six months or more or for a period of one year or more. Presence without lawful immigration status or unlawful presence of a period of six months but less than one year will incur a 3 year bar from seeking an immigration benefit at the point the noncitizen departs the United States. Unlawful presence of 1 year or more will trigger a bar of 10 years upon departure from the United States.

The concept of legal status arises in situations where the noncitizen is seeking to extend or change his immigration status within the United States. Extending or changing status requires the noncitizen to be in legal status in order to apply for the new benefit or change of status. Typically, a person who files for an extension or change of status before expiration of the current status, will be considered to be in a period of authorized stay pending approval of the application and remain eligible for approval for the change or extension of status. Compared to a situation where the noncitizen falls out of status where it will be difficult in some cases to not possible in most cases to be able to qualify for the extension or change.

Therefore, a person who loses or falls out of legal immigration status might not necessarily start accruing unlawful presence but will likely be disqualified from applying for an extension or new immigration status within the United States. A noncitizen can fall out of legal status when the period of stay authorized by an immigration official expires or when the noncitizen violates a term of the immigration status. One who falls out of status does not always begin to accrue unlawful presence. Accruing of unlawful presence may occur upon either expiration of status or violation of an immigration term or condition, but unlawful presence accrual will likely occur after another condition occurs. This could be a result of an exception, grace period after termination of status or a requirement of a formal finding of unlawful status by an immigration official or judge.

Some other typical scenarios where a noncitizen who falls into unlawful status may not accrue unlawful presence include:

  • (A) Minors Who Are under 18 Years of Age
  • (B) Aliens with Pending Asylum Applications (Including Children Aging Out and Dependents of Asylum Applicants)
  • (C) Aliens Physically Present in the United States with pending Forms 1-730
  • (D) Beneficiary of Family Unity Protection (FUP) Granted pursuant to Section 301 of the Immigration Act of 1990; 8 CFR 236.15
  • (E) Certain Battered Spouses, Parents, and Children
  • (F) Victims of Severe Form of Trafficking in Persons
  • (G) Nonimmigrants with Pending Requests for Extension of Status (EOS) or Change of Status
  • (COS] (“Tolling”)

Regardless there are situations where it’s not always clear whether a noncitizen is not in lawful immigration status or is accruing unlawful presence, so it’s always wise to consult with one of our experienced immigration attorneys if there are any doubts of your current immigration situation.

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