Unlawful Presence – Does it Apply to Me?

One of the recurring themes I’ll examine on this blog is the idea of “unlawful presence.”  With certain exceptions, under current immigration laws, a person “unlawfully present” in the United States for a certain period of time is ineligible to:

(1) adjust his or her status to that of a Lawful Permanent Resident (e.g., by having an I-130 Petition for an Alien Relative filed on his or her behalf), or

(2) Enter the United States.

A person is unlawfully present in the United States if he or she is present “after the expiration of the period of stay authorized by the Secretary of the Department of Homeland Security (DHS), or is present in the United States without being admitted or paroled.”  In other words, unlawful presence may begin to accumulate when a person overstays the time allowed on his or her visa or I-94 entry document, as well as when a person enters the United States without being inspected by government officials.

One of the most common issues that I encounter in this area involves the filing of an I-130 Petition by a United States citizen on behalf of a relative already in the United States on an F or B visa.  In many cases, the beneficiary may have been admitted to the United States for a relatively brief period of time – perhaps 3 months.  Does the beneficiary accumulate unlawful status while he or she is awaiting a decision on the Petition?  For some time, the answer to this question was debatable.  Fortunately, DHS clarified its position on unlawful presence in a 2009 USCIS interoffice memorandum.  According to this memorandum, it is DHS’ position that an adjustment of status applicant with a properly filed application does not accumulate unlawful presence unless the applicant files for adjustment after removal proceedings have commenced.

The memo can be found at this link: http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

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