What Is Unlawful Presence?

Unlawful presence (ULP) is an immigration status violation that applies to individuals who have been unlawfully present in the United States, either after the expiration period of an authorized stay or any presence without being formally admitted or paroled into the United States. Simply stated, unlawful presence starts when a foreign national does one of two things: (1) enters without inspection, or (2) overstays a visa.

Unlawful Presence is triggered upon one’s departure from the United States. It is important to understand that the act of departing the United States without advance parole, even if to consular process to obtain an immigrant visa, triggers unlawful presence. Unlawful presence of more than 180 days (6 months) results in a three-year inadmissibility bar once the foreign national voluntarily departs the United States. A period of one year or more of unlawful presence results in a ten-year bar upon departure from the United States.  Persons who illegally return to the United States without seeking a waiver must wait outside the United States for a period of 10 years before they can apply for a waiver.

Recognizing the possible penalties associated with departing the United States, the role of the Immigration Lawyer is to help his or her clients to evaluate their immigration options and potential risks associated with departing the United States.  For example, many clients feel compelled to return to their home countries for important familial reasons, such as to visit an ailing loved one in the hospital or to attend a funeral.  Even if the foreign national is married to a United States Citizen, the departure will trigger a bar, depending upon how much unlawful presence time they have accrued.

There are six main categories of individuals who do not accrue unlawful presence. They are: 1) individuals under 18 years of age; 2) applicants with pending political asylum applications who do not work without employment authorization; 3) individuals who have been granted “Family Unity” during the authorized period; 4) abused/battered spouses and children, provided there is a link between the abuse and the unlawful presence; 5) victims of a severe form of trafficking; and 6) non-immigrants who have made a timely, non-frivolous application for an extension of stay or change of status, during the 120-day period after filing the application.  In addition to the six categories, there are also other exceptions to unlawful presence (e.g. individuals with TPS) which require the expertise of a qualified Immigration Attorney to help define and legally analyze the particulars of their unlawful presence.

If a person has triggered the unlawful presence bar, the only way to rectify the situation is through filing an I-601 waiver, demonstrating that the person’s United States citizen or permanent resident spouse or parent(s) would suffer “extreme hardship if their loved one were to be declared inadmissible to the United States.  At the Shulman Law Group, our immigration attorneys are experts in helping individuals apply for unlawful presence waivers.  Our expertise is in helping the clients and their family members to create a compelling dossier of probative documentation to ensure the approval of their I-601 waiver. While our hope is to be able to advise and educate clients at the initial stages of their cases so that unlawful presence bars are not unnecessarily triggered, we are poised to assist clients who are subject to the 3 and 10 year bars, so that they may be expediently reunited with their loved ones in the United States and able to eventually adjust their status.