In an immigration law context, the term "unlawful presence" refers to a person being physically present in the United States without the proper authorization. It may include instances where the person has remained in the U.S. after their temporary stay time period has expired. It more commonly refers to entry into the U.S. that was obtained in an illegal manner, such as not submitting to inspections, or using fake documents to enter the country.
For removal or deportation purposes, the amount of time that a person is unlawfully present may be related to their risk of deportation. That is, a person who has been unlawfully present in the U.S. may be at greater risk than a person who has been in the country for a very long time. Of course, each individual case is different, but in general, unlawful presence in the U.S. can lead to removal from the country.
In comparison, "out-of-status" means that the person has lost their immigration status due to some sort of violation of the visa terms. Each immigration status is associated with different rights, such as the right to stay in the U.S. for a certain period of time, or the right to obtain employment in the U.S. If a person violates such terms, they may lose their immigration status. The individual is then to said to be "out-of-status."
Other examples of conduct that can leave a person "out-of-status" include:
- Working without the proper authorization
- Failing to marry the petitioner if the visa is a fiancé-based visa
- Failing to attend the appropriate school if under a student visa
Being out of status can lead to removal, and in some cases, can also result in various criminal consequences.
One of the main differences between the two is that a person who is out-of-status was actually in the country validly at one point. In contrast, "unlawful presence" simply denotes a person being in the country illegally. They may never have actually been granted legal status, or have even been documented by authorities.
As such, unlawful presence is generally a more serious violation than being out of status. Both can lead to removal procedures, but a person found guilty of unlawful presence may be more likely to face a bar on re-entry than a person found out of status.
For instance, most immigration laws state that a person who has accumulated more than 180 days of unlawful presence will be subject to a 3-year bar on re-entry. On the other hand, a person who is found out of status may not be directly linked to such re-entry bars. In any case, it is advisable to avoid periods of either unlawful presence or out-of-status.
Immigration laws can often be very complex, especially when it comes to the calculation of periods of residency in the U.S. It may be to your advantage to hire a qualified immigration lawyer if you have any concerns regarding unlawful presence or out-of-status issues. Your attorney can help you to avoid violations that might negatively affect your status or your chances at obtaining citizenship. Also, your lawyer can represent you if you need to attend any formal legal hearings.