A DISTINCTION WITH A DIFFERENCE
Immigration Reform and Immigrant Responsibility Act of 1996 introduced the
concept of "unlawful presence" into the Immigration and Nationality Act.
"Unlawful presence" is a completely new concept that never existed before, does
not exist anywhere else in the Act and is different from any other concept of
improper status or status violations in the INA. "Unlawful presence" only
applies to the three and ten-year and permanent bars to admissibility .It has
nothing to do with concepts of unauthorized employment, violations of conditions
of status or failure to maintain status as defined in other parts of the Act.
There are many examples of illegal aliens who are not "unlawfully present", and
there are many examples of aliens in legal status who are "unlawfully present".
As a result, it is no longer sufficient to determine whether a client is or is
not in legal status -the client may be in legal status for one purpose but
unlawfully present for purposes of the bars to admissibility, or vice
This article will outline the various sections of the Immigration and
Nationality Act that relate to improper status of aliens and compare and
contrast such sections with "unlawful presence."
1. INA § 212(a)(9)(B)(ii), 8 USC § 1182(a)(9)(B)(ii)
alien is deemed to be unlawfully present in the United States if the alien is
present in the United States after the expiration of the period of stay
authorized by the Attorney General or is present in the United States without
being admitted or paroled.
Definition Can Be Divided Into Three Parts
(1) An alien who entered without
being inspected or admitted is unlawfully present;
(2) Aliens who are in
the United States after a date certain on Form I-94 are
(3) Aliens who meet an ever changing regulatory list
of statuses "authorized by the Attorney
General" are not unlawfully
§ 212(a)(9)(B)(iii) provides statutory exceptions
to accumulation of time in unlawful presence for minors, asylum applicants,
battered spouses and children, and family unity beneficiaries.
The standard for waiver is extreme hardship to spouses or sons
or daughters of United States citizens or lawful permanent residents (compare
to extraordinary circumstances standard for waiver under INS § 222(g),
Note: Even within the parameters of § 212(a)(9)(B)
unlawful presence, certain periods of time may be considered unlawfully
present for one bar and not for the other bar. For example, departure from the
United States voluntarily after an alien has been unlawfully present for more
than 180 days but less than one year after the commencement of deportation or
removal proceedings will not subject the alien to the three-year bar.
Nevertheless, that same period of time will accumulate against the ten year
bar. Moreover, while the timely filing of a non-frivolous application for a
change or extension of status will toll the accumulation of unlawful presence
for 120 days for purposes of the three year bar, such time continues to
accumulate for the ten year bar.
2. INA §
222(g), 8 USC § 1202(g)
Voids all previous visas of aliens who were "admitted
on the basis of a nonimmigrant visa and remained in the United States beyond the
period of stay authorized by the Attorney General," and creates a restriction on
venue for such aliens to apply for a subsequent visa.
Although not mentioning "unlawful presence," the language
is virtually identical to § 212(a)(9)(B), and the administrative
interpretations regarding which actions fall within the ambit of this
provision have been virtually identical.
( 1) Not
applicable to aliens who entered without being admitted, visa waiver
non-immigrants and Canadian border crossers.
(2) Specific exceptions in §
212(a)(9)(B) for minors, asylees, family unity beneficiaries, battered women
and children and 120 day tolling for timely- filed extensions or changes of
nonimmigrant status are not exceptions under § 222(g).
c. Standards for
The standard for waiver is extraordinary circumstances (compare to
extreme hardship to spouses or sons or daughters of United States citizens or
permanent residents for waiver under § 212(a)(9)(B)).
3. INA §
237(a)(1), 8 USC § 1227(a)(1)
Alien is removable if "present in the United
States in violation of this Act" or admitted as a nonimmigrant and "failed to
maintain the nonimmigrant status or to comply with the conditions of such
Examples of Aliens Who are Removable
Examples of aliens who are removable
under this section but not "unlawfully present": students or exchange visitors
in the United States beyond periods authorized under Form 1-20 or IAP-66;
aliens who worked without authorization.
b. Examples of Aliens Who are
Examples of aliens who are "unlawfully present" but
who are not normally placed in removal proceedings or are not subject to being
removed include: aliens who timely filed extensions or changes of nonimmigrant
status applications which are still pending after more than 120 days but not
more than 240 days; aliens in the United States with employment authorization
pursuant to a court-certified class action.
4. INA §
245(c)(2), 8 USC § 1255(c)(2)
ineligible for adjustment of status who "continues in or accepts unauthorized
employment" or who "has failed to maintain continuously a lawful status since
Unauthorized employment is not a relevant factor
for determining "unlawful presence" unless the immigration judge or INS makes
a finding that the alien has engaged in unauthorized employment. This normally
would occur when the INS denies an application to change or extend status or
the immigration judge issues an order finding that the alien engaged in
unauthorized employment in proceedings to deport or remove the alien.
Failure to Maintain a Lawful Status
Failure to maintain a lawful status is
not a relevant factor for "unlawful presence" until the alien stays beyond a
date certain on Form 1-94 unless the INS or immigration judge makes a finding
that the alien has violated status.
5. INA §
245(c)(7), 8 USC § 1255 (c)(7)
Alien not eligible for adjustment of status if
"not in a lawful nonimmigrant status."
Lawful Nonimmigrant Status
Many aliens are not in a lawful nonimmigrant
status but are not unlawfully present; e.g., alien with approved H-IB petition
who is working for a different employer; alien in B-2 status who is working;
F-l alien who remains in the United States beyond the authorized period on
6. INA §
245(c)(8), 8 USC § 1255(c)(8)
Alien ineligible to adjust status if "employed
while the alien was an unauthorized alien" or "otherwise violated the terms of a
With respect to employment while alien was "unauthorized
alien", see discussion of INA § 274A(h)(3) in Section 8 below.
Who Have Violated the Terms of the Nonimmigrant Visa But Are Not "Unlawful
of aliens who have violated the terms of the nonimmigrant visa but are not
"unlawfully present": F-l student who works more than twenty hours per week on
campus; H-IB alien approved for full-time employment who works
7. INA §
245(k)(2), 8 USC § 1255 (k)(2)
Ineligible for adjustment of status if (A)
"failed to maintain, continuously, a lawful status; (B) engaged in unauthorized
employment; or (C) otherwise violated the terms and conditions of the alien's
See discussion of § 245( c )(2) and § 245( c )(8) in Section 4
and 6 above.
8. INA §
274A(h)(3), 8 USC § 1324a(h)(3)
For purposes of sanctions against employers
who employ unauthorized
aliens, unauthorized aliens
means with respect to
the employment of an alien at a particular time, that the alien is not at that
time either (A) an alien lawfully admitted for permanent residence, or (B)
authorized to be so employed by this chapter or by the Attorney
Examples of aliens who are "unauthorized aliens" but
not "unlawfully present": alien on valid E-2 visa who is working for a second
company in addition to the treaty investor company; adjustment of status
applicant who works without a proper working visa or employment authorization
document; alien in valid B-l visa status who goes on the payroll of the United
b. Aliens Who Are "Unlawfully Present"
aliens who are "unlawfully present" but not "unauthorized aliens:" LULAC alien
with employment authorization; alien who files for adjustment of status for
the first time in proceedings and obtains an employment authorization
document; aliens working for the same employer during the tendency of a
timely-filed extension of status application which has been pending more than
120 days but less than 240 days.
9. INA §
248, 8 USC § 1258
Alien ineligible to change nonimmigrant status if alien is
not "continuing to maintain that status."
Failed to Maintain Nonimmigrant Status
Aliens who have failed to maintain
nonimmigrant status are ineligible for a change of nonimmigrant status; such
aliens are not unlawfully present unless they remain after a date certain on
Form 1-94, irrespective of whether they violated
1. 8 CFR § 214.1(c)(4)
stay may not be approved for an applicant who "failed to
previously accorded status or where such status expired."
Failed to Maintain Status
As with change of nonimmigrant status, failure to
maintain status is a basis for denying an extension of status but is not a
relevant concept for determining "unlawful
is obvious that this area of law is a minefield for even the most knowledgeable
and cautious practitioner. Not only are there so many interrelated but different
concepts, but also many of the interpretations are either not in regulatory form
or in some cases not even in a written communication. Even worse, the stakes of
wrong advice are enormous -in some cases, a ten-year bar from returning to the
United States. Advising alien clients who have made even the most minor misstep
has never been more complex.