What is Overstaying and How Does it Affect Me?

 Posted on June 09, 2016 in Immigration

When people talk about undocumented immigrants, they are often referring to those who have traveled over a border without permission. However, the term technically also applies to people who have overstayed a lawfully granted visa, or used that visa for an incorrect purpose. Anyone who accrues what is referred to as ‘unlawful presence’ can face serious consequences in the future.

Accruing Unlawful Presence

The major question that you should ask yourself is whether or not you accrued what United States Citizenship and Immigration Services (USCIS) calls unlawful presence. USCIS defines unlawful presence as remaining in the country after the expiration of the stay permitted by one’s visa without being admitted or paroled into the country. However, one does not accrue unlawful presence automatically—in many cases, a judge must specifically delineate time in the country as unlawful for it to count against someone in terms of immigration law. This is especially common among students, who are less likely to be issued Notices to Appear—schools are presumed to provide guidance to their international students on these matters.

Unlawful presence is specifically not accrued by people who fall into one of the following categories:

• Minors;
• Potential asylees (that is, people with claims pending before an immigration judge or an appeal board);
• A person with an application pending for a change of status or adjustment of status (obtaining a lawful permanent resident or “green” card);
• Victims of specific crimes, notably human trafficking and domestic abuse; and
• Anyone who has received temporary protection under a status such as deferred action, withholding of removal under the Convention Against Torture, or who has Temporary Protected Status.

There are myriad exceptions to these categories; however, on the whole, if you qualify under any of these criteria, you will not accrue unlawful presence that could cause issues for you later on. If you accrue more than 180 days, but less than one year, you will be barred from entering the U.S. for three years. The bars increase in length with the amount of unlawful presence accrued.

Waivers

Most often, someone who has accrued unlawful entry is able to apply for a waiver of inadmissibility, either inside or after he or she departs the United States. Waivers are available for those who meet the criteria, but provisional waivers are also available to those who are parents, children, or spouses of U.S. citizens, which allow them to remain in the U.S. before leaving to attend a consular interview abroad. This is thought to cut down on the length of time that one must spend apart from friends and family.

Be advised that one of the biggest misconceptions among laymen is that anyone who is in the United States at any time without a valid visa is an “illegal immigrant.” This is not the case, and it is an important distinction that can be drawn in any proceeding. It is possible to accrue unlawful presence without having an unlawful entry, and the reverse.

Seek Experienced Assistance

It seems simple, but an unlawful presence issue can actually cause significant complications for you and yours if not handled properly. The Chicagoland immigration attorneys at Mevorah & Giglio Law Offices have experience with these cases, and are happy to help guide you through what can be a difficult process. Contact us today to set up a free consultation.

Sources:

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

https://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-presence-waivers