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Unlawful Presence

Unlawful presence refers to the period of time that an individual remains in a country without lawful immigration status or authorization. In the context of the United States immigration system, unlawful presence specifically refers to the time that foreign nationals spend in the country after the expiration of their authorized period of stay, or after entering the country without proper documentation or authorization.


Key aspects of unlawful presence in the United States include:


1. Unauthorized entry: Foreign nationals who enter the United States without inspection by immigration authorities or without valid entry documents, such as a visa or border crossing card, are considered to be unlawfully present from the moment they enter the country without authorization.

2. Overstaying visa: Foreign nationals who enter the United States legally with a visa but remain in the country after the expiration of their authorized period of stay, as indicated on their Form I-94 Arrival/Departure Record, are also considered to be unlawfully present. This includes individuals who overstay tourist visas, student visas, work visas, or other nonimmigrant visas.

3. Consequences of unlawful presence: Individuals who accrue unlawful presence in the United States may face adverse immigration consequences, including bars to reentry, denial of future visa applications, and removal (deportation) proceedings. The length of unlawful presence accrued by an individual may affect their eligibility for certain immigration benefits or relief, such as adjustment of status to lawful permanent resident or waivers of inadmissibility.

4. Calculation of unlawful presence: The calculation of unlawful presence can vary depending on individual circumstances and specific immigration laws and regulations. In general, unlawful presence begins to accrue from the date of entry without authorization or the date of expiration of authorized stay, and continues until the individual departs the United States or obtains a lawful status through immigration channels.

5. Exceptions and waivers: Certain individuals may be eligible for exceptions or waivers of unlawful presence under specific circumstances, such as minors, victims of trafficking or domestic violence, and individuals with pending immigration applications or petitions. These exceptions and waivers may provide relief from certain immigration consequences associated with unlawful presence.


Overall, unlawful presence is a critical concept in the United States immigration system, with significant implications for individuals’ immigration status, eligibility for benefits, and potential consequences for future immigration options. It is essential for foreign nationals to understand and comply with U.S. immigration laws and regulations to avoid accruing unlawful presence and to pursue legal avenues for immigration status and relief when appropriate.

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Frequently Asked Questions

What is unlawful presence in the context of a visa?

Unlawful presence refers to the period of time when a non-citizen stays in a country without legal authorization or after the expiration of their authorized period of stay.

How does unlawful presence affect my visa status?

Unlawful presence can have serious consequences on your visa status. It can lead to visa revocation, denial of future visas, deportation, and ineligibility for certain immigration benefits.

What are the consequences of accruing unlawful presence?

Accruing unlawful presence can result in a bar from re-entering the country for a certain period of time. The length of the bar depends on the duration of unlawful presence accumulated.

How can I avoid accruing unlawful presence?

To avoid unlawful presence, it's crucial to adhere to the terms of your visa and departure deadlines. If you need to extend your stay, seek legal advice and apply for an extension before your authorized stay expires.

Can I rectify unlawful presence if it has already occurred?

Depending on individual circumstances, there may be options to rectify unlawful presence, such as applying for a waiver or voluntary departure. It's important to consult with an immigration attorney to explore available options and potential consequences.
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