What are “Unlawful Entry” and “Unlawful Presence” Under US Immigration Law?
Both unlawful entry into and unlawful presence in the US are violations of US immigration law that can result in deportation, long-term bans on re-entering the US and in some cases, even criminal liability. In view of the seriousness with which US immigration authorities take these offenses, it seems appropriate to explain precisely what these offenses entail.
Unlawful entry means entering the US in violation of its immigration laws. There are two main ways to commit this offense — by sneaking across the border, or by entering through immigration inspection under false pretenses. Some examples follow:
Entering by means of presenting a fake passport to US immigration officials at a port of entry, such as an airport.
Walking across the border in a remote area without inspection.
Entering the US on a visa for which you are ineligible by providing false information.
Entering the US based on a sham marriage.
You do not commit unlawful entry simply by overstaying your visa, although overstaying your visa is a separate offense that can result in serious immigration consequences.
Unlawful presence means remaining in the US in violation of US immigration laws. Following are some examples:
Overstaying your visa. This can be a tricky area of law for those on student visas whose visa extends for the “duration of study” — for example, does a student who drops down to part-time student status overstay his visa during the period of part-time student status? Consult an experienced immigration lawyer if you are unsure.
Remaining in the US after illegally entering the US. Illegal entry and unlawful presence are separate offenses, and it is not true that you have “nothing to lose” by remaining in the US once you have already entered illegally.
Exceptions to the Unlawful Presence Rule
You do not accrue unlawful presence if:
Your otherwise unlawful presence occurred while you were still a minor (under 18);
You are waiting for an asylum petition to be adjudicated (as long as you don’t work unlawfully during this time);
You are a beneficiary of the Family Unity program and your authorized period has not expired;
If you are a battered spouse (or your child is battered), as long as there is a sufficient connection between the abuse and the presence that would otherwise have been unlawful;
If you are a victim of a severe form of human trafficking, and this trafficking is sufficiently connected to your otherwise unlawful presence; and
If you have made a timely, nonfrivolous application for an extension of stay or change of status, and you remain in the US for no more than 120 days after you file the application (or the application is approved within 120 days).
Please remember that benefiting from an exception to unlawful presence does not automatically erase all of your unlawful presence. Suppose, for example, that you entered the US with your parents at age 16, and remained until you were 21. All of your presence accumulated before your 18th birthday would not be considered unlawful; however, any time you remain after this would be considered unlawful unless you held a valid visa or some other exception applied.
The foregoing represent only a brief overview of the subjects of unlawful entry and unlawful presence — in other words, it can get a lot more complicated under certain circumstances. Consult an experienced immigration attorney if you even suspect that you may have an issue that needs to be addressed.