Unlawful Presence in the U.S. & Legal Penalties

Unlawful Presence in the U.S. & Legal Penalties

The government can criminalize your mere presence in the United States if you do not have a legal right to be in the country. Unlawful presence in the United States can lead to jail time for a conviction. It can also complicate your ability to enter the country again.

If authorities allege you are unlawfully present in the United States, contact a skilled lawyer for immigration issues to review your case and explain your legal options, or you can lose your ability to reenter the United States and live with your family.

Penalties for Illegal Entry Into the United States

8 USC 1325 covers illegal entry by an alien (the term used by the law) into the United States.

Illegal entry may include:

Attempting to enter the United States at a place other than those designated by immigration officers
Eluding examination and inspection by immigration officers
Attempting to enter the United States through the use of a false representation or hiding a material fact

Unlawful presence in the United States may mean that someone committed unlawful entry at some point. Unlawful entry can result in jail time. A first offense can result in a fine and up to six months in prison. A second offense can lead to a jail sentence of up to two years and a fine.

What Is Unlawful Presence In the United States?

Unlawful presence may also include overstaying when you previously had a legal right to be here. For example, your visa may have expired, the government may have revoked your green card, yet you continued to remain in the country.

When you lawfully enter the country at a point of entry, the date will appear on the form and in USCIS records. The government may already know you overstayed a visa based on when they found you in the country or you left through a port of entry.

Unlawful Presence Could Mean a Lengthy Bar to Reentry Into the Country

Unlawful presence has consequences that can affect your ability to come to the United States in the future (assuming that you left the country on your own, or authorities removed you). An unlawful presence can bar future entry.

The length of the bar from the country depends on how long authorities allege you were unlawfully present in the United States. The duration also depends on whether you leave the country alone or the government deports you.

The bars from the United States are as follows:

There is a three-year bar from entering the United States if you unlawfully spent more than 180 consecutive days in the country. The government may bar you from the country if you voluntarily leave on your own without removal proceedings.
There is a ten-year bar from entering the country if you unlawfully spent more than a year in the United States on a consecutive basis. This bar is also assessed whether you left on your own or were removed from the country.

You May Not Always Be Unlawfully Present in the United States

Some loopholes in the law can keep the government from imposing a bar, even if you were unlawfully present in the United States for a period of time. The law is phrased in terms of continuous presence in this county.

If you were present in the United States for more than 180 days or one year, but no one single stay was longer than this amount, then you should not be barred. If you are ever questioned, you need to prove the exact lengths of each of your stays. Then, the law only applies to time illegally spent in the United States when you were over the age of 18. If you were in the country as a child, the time spent here should not count towards the 180 days or one year necessary to be barred from the United States in the future.

Other extenuating circumstances that can prevent the government from finding you unlawfully present in the United States include:

You were admitted to the United States as a refugee
You qualify for asylum due to the conditions you may face back home (you may apply for asylum to convert your status, even if you were unlawfully present for a time)
You were subject to family unity protection under Section 301 of the Immigration Act of 1990
You are a battered woman, or your child is subject to extreme abuse and cruelty from the other parent

If you fall under any of these exceptions, you may not be subject to removal proceedings and may enter the United States in the future. However, you can expect USCIS to closely scrutinize anything you argue in defense of accusations of unlawful presence.

You Can Seek a Waiver of Inadmissibility

Even if you should ordinarily face penalties for being wrongfully present in the United States, all hope is not lost if you want to enter the country again, although you are facing an uphill battle.

Some people subject to bars from entry may apply for and receive a waiver of inadmissibility that allows them to return to the United States.

Obtaining a waiver of inadmissibility is theoretically possible, but it is not always easy to get. You need to show that a spouse or parent in the United States will suffer extreme hardship if you cannot enter the country, and the standard that you must meet is very high.

Nevertheless, you should consider hiring an immigration law attorney to represent you if you seek a waiver of inadmissibility. An experienced lawyer who understands both individual cases and broader employment-related immigration issues, including immigration laws for employers, can assess your situation and present your strongest possible case.

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