Before speaking about immigration and deportation, it is imperative to clarify that seeking asylum through immigration into the United States is absolutely legal. There is a legal process that assists those seeking asylum in the United States, as well as a legal process that helps those individuals become United States citizens if they choose to stay. 

Immigration laws dictate how an individual from abroad may qualify for a visa, and under what circumstances that individual may be deported. Those who have already migrated to the United States must also abide by immigration laws. A significant number of immigrants who legally reside within the United States have what is known as a green card, or permanent visa. While those with green cards may seek to be citizens, they must also refrain from activities that may risk deportation.

In an immigration law context, the term “unlawful presence” refers to when a person is physically present in the United States without the proper authorization. Unlawful presence may include instances in which the person has remained in the United States after their temporary stay time period has expired. However, the term more commonly refers to an entry into the U.S. that was obtained in an illegal manner. An example of this would be not submitting to inspections, or using fake documents in order to enter the country.

According to section 212(a)(9)(B)(ii) of the INA, it would be considered unlawful presence if you are present in the United States without being admitted or paroled. 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.

What Does “Out-of-Status” Mean?

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.S. or to have a short visit, you will need a visa to do so. There are many different types of visa applications, including but not limited to:

  • Family-based petition visas;
  • Employment-based visas;
  • Permanent visas; and
  • Student visas.

Each individual immigration status is granted different rights. An example of this would be the right to remain in the U.S. for a specific amount of time, or the right to obtain employment while in the U.S. 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:

  • Working or being employed without proper authorization;
  • Failing to marry the petitioner when the visa is a fiancé-based visa; and/or
  • Failing to attend the appropriate schooling if under a student visa.

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.

What Is the Difference between Unlawful Presence and Out-of-Status?

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 180 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, 2013, certain immigrant visa applicants who are immediate relatives of U.S. citizens can apply for provisional unlawful presence waivers prior to leaving for their consular interview. As of August 29, 2016, 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 180 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 212(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. Additionally, a Department of State (“DOS”) consular officer must determine that they are inadmissible to the United States.

This process allows those who are statutorily eligible for an immigrant visa, and who only need a waiver of inadmissibility for unlawful presence, to apply in the United States before departing for their immigrant visa interview. Such individuals include:

  • Immediate relatives;
  • Family-sponsored immigrants;
  • Employment-based immigrants; and
  • Diversity Visa selectees.  

This new process was developed in order to shorten the amount of time that U.S. citizens and lawful permanent resident family members are separated from their relatives, while obtaining immigrant visas in order to become lawful permanent residents of the United States.

It is important to note that individuals who do not wish to seek, or do not qualify for, a provisional unlawful presence waiver may still file Form I-601, Application for Waiver of Grounds of Inadmissibility. This must be filed after a DOS consular officer has determined that they are inadmissible to the United States.

Do I Need a Lawyer?

Immigration laws are considerably complex, and in the United States, may change with each presidential term. If you are considering emigrating, or have immigrated and are facing issues associated with unlawful presence or being out of status, you should consult with a local and experienced immigration lawyer

An immigration attorney can help you determine which visa you should apply for, or what you must do to clear your status. They can also help you file a provisional unlawful presence waiver when necessary. Additionally, your immigration attorney will also be able to represent you in court, as needed.