Unlawful presence in the U.S.

The immigration attorneys of Lluis Law in Los Angeles, always warn about the consequences of an unlawful presence in the U.S. In other words, about remaining in the United States without authority. When a tourist or any other visitor exceeds the permitted days of stay, they are exposed to strong immigration penalties.

However, there are some legal resources to resolve these types of circumstances that may eventually help foreigners. Otherwise, a visitor who for some reason becomes illegal in the United States may be expelled or deported immediately.

A foreign visitor who stays longer than allowed in the US becomes an undocumented person, an illegal immigrant. Although you also have the possibility of regularizing your legal status in the country. Here we explain the consequences of remaining unlawfully and what to do in a similar situation.


If you have questions and need answers about your legal situation, call any of our immigration lawyers in los Los Angeles right now. Sure we can help you find an alternative to legalize and resolve your case.

What are undocumented or illegal immigrants?

Foreigners who cross the border of a country in violation of legal requirements and procedures are considered undocumented immigrants. Illegality is also committed many times when leaving the country of origin irregularly.

When speaking of undocumented immigrants, reference is made to foreigners without a legal entry and stay visa in the United States. Paperless also means not having a provisional or permanent residence permit, employment authorization and Social Security.

Undocumented immigrants are often captured at the border and entry points into the country by immigration authorities. However, many manage to pass without arrest, some remain within the country, while others are caught in police raids.

What to do if my tourist visa is about to expire?

visa about to expire

To avoid becoming the consequences of unlawful presence in the U.S is best to leave the country before the legal deadline expires. However, if circumstances warrant it and you want to increase your stay on United States you can also do so.

Firstly, it is important to be sure of the date when you must leave the country. This should not be confused with the expiration date of the visa, because these are two completely different things.

Document I-94 issued by the Department of Homeland Security (DHS) specifies the date of entry and exit. Check their website for more details or call us.

Then you should check with your immigration attorney other available immigration resources, such as an extension or visa change. This will allow you to obtain an additional time of legal stay in the United States.

What is a visa extension?

The visa extension is a resource that is granted to holders of B1 business or B1 / B2 business and tourism visas. Through this procedure, you can request the legal extension of the time of stay in the country.

Please note, this immigration resource is not available to Mexican, Canadian or Bermuda nationals.

It is advisable to apply for the visa extension after remaining for at least 3 months in the United States, not before. Our lawyers advise sending the application about 45 days before the expiration date of the residence permit.

To request the visa extension, the form I-539 is used. It has a filing fee of $ 370 plus $ 85 paid for biometric services. The I-539 form must be sent to the Citizenship and Immigration Service, along with the I-94 entry / exit record.

The extension or change of visa can only be requested by people who have legally entered the country. Tourists who enter without a visa (for example, Spanish or Chilean) must leave within 90 days from the date of entry.

visas for the USA

You may be interested in learning more about the different types of visas available to the United States.

Other consequences of unlawful presence in the U.S.

There are exceptional cases in which it is possible to stay in the USA for a longer time than authorized on the visa. The most appropriate way is through the so-called status restoration or Nunc Pro Tunc. It is used for some justified cases in which the visa extension or change was not requested in time.

Other consequences of unlawful presence in the U.S. for longer than the government allows are:

  • Cancellation of the tourist visa is denied. The administration does it without prior notification.
  • When the visitor enters the United States without a visa loses the right to obtain it. When leaving and trying to enter again, you must apply for a tourist visa at your country’s consulate. Although, you will have no guarantee that it will be approved.
  • In both cases, having entered the U.S. with a visa or not and staying longer than authorized, is a reason for inadmissibility.
  • If the immigrant has remained illegally in the country for more than 180 days and then leaves, the sanction is greater. The government applies the punishment of 3 and 10 years, during which he cannot return to the United States.

With the help of an immigration attorney and with few exceptions, it is possible to seek a readmission option again. One of them is the I-601 immigration waiver, through which the person can apply for a nonimmigrant visa. For example, tourist, investor, student or exchange visas, among others. Only in this way is it possible to avoid the penalty of 3 and 10 years.

However, it is not an easy process for the foreigner who made the mistake of staying longer. Since, due to their conduct, there is already a precedent of illegality on the part of the visa applicant. That does not mean that everything is lost, at all.

What is illegal presence for immigration?

It is the period of stay of a foreigner in the U.S. without having been admitted or having an entry permit. It is also called unlawful presence when the person remains without a “period of stay authorized by the Secretary”.

Likewise, it is considered illegal presence when an immigrant enters the country using fraudulent actions. That includes using falsified documentation and providing the immigration authorities with false information. Just like staying in the United States after the temporary visa expires.

How is unlawful presence sanctioned?

Sanctions for unlawful presence in the country include the veto or prohibition of re-entry to the United States for:

  • 3 years. If the alien leaves the United States after an unlawfully presence for more than 180 days. Although for less than a year, during a single stay and before the removal process begins.
  • 10 years. If the foreigner leaves the US after more than a year of constant illegal presence. This sanction is imposed regardless of the existence of a removal process before, during or after leaving.
  • Permanent. When the foreigner re-enters or tries to re-enter the country without having been previously admitted. Also when you have not obtained an entry permit after accumulating more than a year in total of unlawfully presence. Whether is one or more periods remaining in the United States.

During the 3-year inadmissibility, the foreigner is ineligible to:

  • Obtain an immigrant visa or a nonimmigrant visa to travel to and enter the United States.
  • Adjust immigration status in the United States and obtain a Green Card.
  • Be admitted to a U.S. port of entry.

While the 10-year veto for illegal presence implies that during that period the foreigner is ineligible to:

  • Obtain an immigrant / non-immigrant visa for the United States.
  • Adjust immigration status to that of legal permanent resident.
  • Be admitted to a U.S. port of entry.

Being out of status in the USA

out of status in the usa

Although it is quite similar to illegal/unlawful presence, both legal concepts do not mean the same thing.

Violations of immigration law may include the following examples:

  • Immigrants who come to the US on a fiancé visa and do not marry within 90 days.
  • Immigrant who enters the country with a student visa but does not enroll in the educational institution.

In both cases, the immigrant or foreigner is out of status, consequently he has an illegal immigration status.

The difference between illegal and out-of-status presence

There are some differences between illegal presence and being out of immigration status. Certain immigrants may be out of status but not necessarily in an irregular situation in the United States. Let’s look at some of these situations:

  • An immigrant who is in the United States and their period of stay is over. The immigrant may have applied for a visa extension before the six-month period ends. In that case, although it is out of state, it does not have an illegal presence, since it awaits a response from the administration.
  • If the government grants the visa extension, then the residence time will be extended to the country. Therefore, it is not considered to be out of state.
  • If the visa extension is denied, you will become out of status and have an illegal presence in the United States.

In either situation, illegal presence or out of status, you must correct and seek a legal solution. Both migratory situations lead to ineligibility to obtain permanent residence and carry deportation charges.

immigration lawyers specializing in deportation

If you are experiencingn a situation like this, you need expert legal help. Our immigration lawyers are specialists in deportations and unlawful presence in the United States.

Now you know better the consequences of an unlawful presence in the U.S in 2020. At Lluis Law we offer representation in the Immigration Court in Los Angeles, adjusted to the needs of our clients. As a family-run law firm with a high record of won cases, we offer a fast, honest and efficient service.