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Consequences of “Unlawful Presence” vs. “Out of Status”

31 May, 2013
By admin
Home Office

Foreign nationals who are out of status or unlawfully present in the United States can be subject to removal proceedings by the Executive Office for Immigration Review “EOIR”. Moreover, both failure to maintain status and unlawful presence make you ineligible to file for an adjustment of status to a lawful permanent resident (green card) under the I-485 application.

However, the consequences of both circumstances can differ greatly as well. Typically, a violation of status will make it difficult to continue immigration benefits in the future such as an extension of your current visa or even a future visa application. While unlawful presence is an automatic invalidation of all visas currently held by a foreign national. The foreign national who is lawfully presence will only then be able to apply go back to his country of origin and re-apply for a new visa at the consulate in the country abroad. If the unlawful presence continues for more than 180 days then it will result in a three-year inadmissibility bar preventing the individual from re-entering the United States. The penalties get decidedly more severe if the unlawful presence continues for more than 1 year which ultimately results in a ten-year inadmissibility bar once you leave the United States.

In contrast, if a person is out of status, but not unlawfully present, it should not trigger inadmissibility. In addition, all current visas should still remain valid as compared to someone accruing unlawful presence. The slight difference between these two terms can have a very big impact on someone’s immigration consequences and options. That is why it is so important to consult with an experienced immigration attorney to determine the circumstances of your case and make educated decisions in regard to your immigration status. To learn more about how an immigration lawyer may be able to help you, contact our office at (732) 450-8300 for a free consultation.

Adjustment of Status to Green Card Inadmissibility Waiver
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