It may also be considered unlawful presence if you have remained in the United States past the expiration of the period of stay as authorized by the Secretary of Homeland Security, or, the Secretary. In terms of removal or deportation purposes, the amount of time that a person is unlawfully present may be directly related to their risk of deportation. Meaning, a person who has been unlawfully present in the United States for any amount of time may be at greater risk for deportation than a person who has legally been in the country for a considerable amount of time.
In comparison to unlawful presence, the term out-of-status means that the person has lost their immigration status because of some sort of violation of their visa terms. Whether you intend to relocate permanently to the U. There are many different types of visa applications, including but not limited to:. Each individual immigration status is granted different rights.
An example of this would be the right to remain in the U. If a person violates the terms of their visa or status, they may lose their immigration status entirely. The individual is then considered to be out-of-status. Some common examples of conduct that can leave a person out-of-status include, but may not be limited to:.
The consequences of being out of status include removal, and in some especially serious cases can also result in various criminal consequences. Both unlawful presence and out of status may result in being denied eligibility for permanent residence. Very simply put, unlawful presence refers to entering illegally, while out-of-status refers to entering legally but remaining illegally.
A person who is out-of-status was actually in the country validly at one point in time. Alternatively, unlawful presence simply denotes a person being in the country illegally. They may never have been granted legal status, or have been documented by immigration authorities. Because of this, unlawful presence is generally considered to be a more serious immigration law violation than being out of status. While both can lead to removal procedures, a person who is said to be guilty of unlawful presence may be more likely to face a bar on re-entry than a person who is said to be out-of-status.
An example of this would be how most immigration laws state that a person who has accumulated more than days of unlawful presence will be subject to a 3-year bar on re-entry. In comparison, a person who is found out of status may not be directly linked to such re-entry bars. As of March 4, , certain immigrant visa applicants who are immediate relatives of U. As of August 29, , the provisional unlawful presence waiver process was expanded to all those who are statutorily eligible for an immigrant visa, as well as a waiver of inadmissibility for unlawful presence in the United States.
Those who are not eligible to adjust their status in the United States must travel abroad in addition to obtaining an immigrant visa. Those who have accumulated more than days of unlawful presence while in the United States must obtain a waiver of inadmissibility in order to overcome the unlawful presence bars before they can return. These can be found under section a 9 B of the Immigration and Nationality Act.
Generally speaking, these individuals cannot apply for a waiver until after they have appeared for their immigrant visa interview abroad. The following is a brief outline of the differences between the two. Foreign nationals who have accrued unlawful presence may be subject to 3-year or year bars.
Foreign nationals who accrue more than days but less than 1 year of unlawful presence will be barred from re-entry to the U. Similarly, foreign nationals who have been in the U.
Foreign nationals who are out-of-status but are not accruing unlawful presence are not be subject to the 3 and 10 year bars.
A minor child, under the age of 18, does not accrue unlawful presence for purposes of the 3 and 10 year bars until the day after his or her 18th birthday. A foreign national may be out-of-status in the U. However, the foreign national is not accruing unlawful presence if the I has not expired. A foreign national with a pending request for extension of stay or change of status, who departs the U.
A foreign national is out-of-status any time they have violated the terms of their visa, but they only begin to accrue unlawful presence when they have stayed in the U. There are numerous situations where foreign nationals may be out-of-status, but are not accumulating unlawful presence. Adam Jenkins is presently in the U. His I expired on March 1. One month earlier, on February 1, he timely filed for an extension of stay. While it is important to always maintain your nonimmigrant status while in the U.
In this situation you would not become subject to the 3 and 10 yea bar to return to the U. However, if you have overstayed your authorized presence, you are both out-of-status and accruing unlawful presence.
You must be aware of the dates on your I, critical to unlawful presence, and what you can, and more importantly, cannot do in the status you have been granted. VisaPro immigration attorneys have been helping foreign nationals that have met unforeseen circumstances and had overstayed in the U. The US [B-1] Visa has always been a tough ride, and being denied a few times it makes it even worse. Next week we shall talk about our status with reference to h-1b employees who find themselves laid off from their jobs, see you next week.
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