You are currently viewing Unlawful presence in the U. S.

Our lawyers at Lluis Law always warn immigrants about the consequences of unlawful presence in the U. S. This is because unlawful presence is considered a violation of U. S. immigration laws. 

Undocumented immigrants sometimes view unlawful presence as the only possible option to remain in the United States. However, this decision is far from being correct, as they risk being deported, fined or imprisoned.  

Fortunately, there are some legal resources to resolve these types of circumstances that can eventually help national foreigners. That said, here we explain the consequences of unlawful presencec in the U. S. and what you can do in a similar scenario.

If you have questions and need answers about your legal situation, call us right now. Our immigration lawyers at Lluis Law in Los Angeles will be able to help you find an alternative to legalize yourself in the United States.


Tell Us Your Case

What Are The Consequences Of Unlawful presence in the U. S. In 2024?

Immigrants who overstay their welcome in the United States will accumulate unlawful presence. This means that if you stayed in the country without the necessary documents, you may be banned from returning again for several years. 

As if that were not enough, the process to obtain a Green Card can become quite a challenge, especially if you:

  • Exceed the time allowed by the visa,
  • Stay more than 90 days after entering under ESTA authorization, or
  • Remain in the U. S. without any legal immigration status.

It should be noted that immigrants who are left without legal status could face additional restrictions in applying for permanent residency. Likewise, the barred duration depends largely on the time spent without immigration status.

Other Consequences Of Unlawful presence In The U. S.

There are exceptional cases in which it is possible to remain in the U. S. for a longer time than authorized in the visa. Generally, the most appropriate path is through the so-called restoration of status or “Nunc Pro Tunc”. This is used for some justified cases in which the visa extension or change was not requested on time.

Other consequences of unlawful presence in the U. S. include the following:

  • Cancellation of the tourist visa without prior notification: When trying to enter the U. S. again, the holder will realize that their visa has been canceled.
  • Loss of the right to obtain a visa: When a foreigners enters the U. S. without an American visa, they automatically lose the right to obtain one. If you leave and try to enter again, you must apply for a visa at the consulate of your country, although without guarantee of approval.
  • Inadmissibility for overstaying: If the aliens entered with or without a visa and staying longer than authorized, they will be inadmissible to the US. 
  • Penalty for unlawful stay of more than 180 days: If an immigrant remained illegally in the country for more than 180 days and then leaves, the government applies a penalty. This bar ranges from 3 to 10 years, during which period he cannot return to the U. S.
waiver of inadmissibility

With the help of an immigration attorney like ours, it is possible to seek a readmission relief again. For example, through a waiver of inadmissibility.

What Is Considered Unlawful Presence In The United States?

Immigration law 8 US Code § 1182 establishes that it is considered unlawful presence in the United States when an alien:

  1. Is present in the country after your authorized period of stay has expired,
  2. Entered the country without having been previously admitted, or
  3. Is in the United States without parole

If aliens are deemed to have accrued unlawful presence, they will be declared inadmissible (unless an exception applies).

What Does It Mean To Be “Inadmissible” To The United States?

Being inadmissible to the United States means that by law, a foreigner cannot enter the country or obtain a Green Card. It should be noted that there are many reasons why a foreigner can be declared inadmissible (beyond the consequences of staying illegally in the U. S.). Some of these reasons involve:

  • Criminal record,
  • Fraud or misrepresentation,
  • Health reasons,
  • Lack a labor certification,
  • A threat to national security, or
  • Illegally re-entered or attempted to re-enter the U. S.

Even if you have some cause that make you inadmissible, do not lose hope, our lawyers will help you. In fact, at the Lluis Law firm we also count with well-versed criminal lawyers in Los Angeles, who will assist you with any criminal matter. For example, understanding the possibility of clearing criminal records.

What Is Accrual of Unlawful Presence?

visa about to expire

The Immigration and Nationality Act (INA) states that unlawful presence in the U. S. can occur due to:

  1. Being present without admission, or 
  2. By staying after the period authorized by the secretary of the Department of Homeland Security (DHS). 

Generally, the accrual of unlawful presence begins upon the immigrant’s entry into the country without an admission. Additionally, if a Form I-94, Arrival/Departure Record, is issued with a deadline, unlawful presence occurs upon exceeding that date.

Despite this, there are exceptions for:

Likewise, the VAWA visa exempts the grounds of inadmissibility in cases of abuse. This also applies to victims of human trafficking, who are exempt if they prove that trafficking was a reason for their unlawful presence. 

What Is Considered Illegal Re-Entry Into The United States?

Under immigration laws, it is considered illegal reentry when an alien re-enters the United States without government permission. This usually occurs after the foreigner:

  • Was deported or removed from the U. S,
  • Left the country with a deportation order, or
  • American authorities denied entry into the country.

Is important to remember that illegal reentry into the United States is considered a federal crime. Therefore, the offender could go to jail. 

Illegal Reentry Penalties

Penalties for illegal reentry depend on the nature of the deportation. For example:

  • Penalties for illegal reentry after being deported. They can range from fines to a couple of years in jail. These penalties may be imposed together or separately, as dictated by the sentence.
  • Penalties for illegal reentry for foreigners with criminal records. It can range from several fines to 10, 20 or more years in federal prison. This prison time will depend on the severity of the crime.
voluntary departure

In addition to these two, there are certain consequences for illegal re-entry after having left voluntarily. This is because voluntary departure from the United States is a relief that allows you to leave without being deported. As a result, failure to comply with this would lead to several fines and/or a multi-year re-entry ban.

How Is Unlawful Presence Punished?

The penalties for unlawful presence in the country include the bar to re-entry into the United States for:

  • 3 years. If the foreigner leaves the United States after being illegally here for more than 180 days. However, it must be for less than one year, for a single stay and before the removal process begins.
  • 10 years. If the foreigner leaves the United States after more than a year of continuous unlawful presence in the country. This sanction is imposed regardless of the existence of a removal process before, during or after leaving.
  • Permanent. When the foreigner re-enters or attempts to re-enter the country without having been previously admitted. Likewise, when you have not obtained an entry permit after accumulating more than one year in total of unlawful presence, either during one or more periods of stay.

During the 3 years and 10 years of inadmissibility, the foreigner is ineligible to: 

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

Difference Between Unlawful and Out of status Presence

Although “being out of status” is quite similar to unlawful presence, the two legal concepts do not mean the exact same thing. Therefore, there are some differences between unlawful presence and being out of immigration status.  

Additionally, certain immigrants may be out of status but not necessarily in an irregular situation in the U. S. Let’s look at some of these scenarios:

  • Immigrants which are in the United States and their permanence period has expired. The aliens may have applied for a visa extension before the six-month period ends. In that case, although they are out of status, they are not under unlawful presence, since they are waiting for a response from the administration. 
  • If the government grants the visa extension, then the time spent in the country will be extended. Therefore, it is not considered to be out of status.
  • If the visa extension is denied, you will be out of status and under unlawful presence in the U. S.

In either scenario, unlawful or out of status presence, this is something that must be corrected and a legal solution must be sought. Therefore, both immigration scenarios lead to ineligibility to obtain lawful permanent residence and to deportation charges.

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

Complications When Applying For A Green Card Without Adjustment Of Status

out of status in the usa

The 3- and 10-year ban affects foreigners outside the U. S. 

If they do not qualify for adjustment of status or already live in another country, national foreigners must:

  1. Apply for a visa, and 
  2. The Green Card at a U. S. consulate. 

To avoid problems when leaving, some may apply for a provisional exemption before traveling. This can make your consular interview easier and reduce your time outside the U. S.

USCIS Policy Update On Unlawful Presence Penalties

In a new policy guidance, USCIS recognizes that the 3- and 10-year bars for unlawful presence may apply while in the United States. This began to apply on June 24, 2022 and covers all scenarios of inadmissibility. 

Previously, it was maintained that the time for the activation of the penalties had to pass abroad. This update affects inadmissibility determinations made by USCIS and the immigration courts since that date.

Although USCIS and the Board of Immigration Appeals (BIA) recognize that time limitations may apply in the United States, it is crucial to note that:

  • The individual must leave the country to activate these limitations. 
  • For time to pass in the United States, they must have returned after they left.

Contact Our Immigration Attorneys At Lluis Law Today 

Now you know better the consequences of unlawful presence in the U. S. today. At Lluis Law we offer representation in the Immigration Court in Los Angeles, adapted to the needs of our clients. 

Do not put your future at risk with an unlawful presence in the United States. Lluis Law can help you legalize your situation in the country. Our team of experienced attorneys is here to guide you through the complex American immigration system.

We are a successful law firm with a high record of won cases, we offer fast, honest and effective service. Call us today.


Tell Us Your Case