UNLAWFUL. ILLEGAL. UNAUTHORIZED
A DISTINCTION WITH A DIFFERENCE

I. INTRODUCTION

The Illegal 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 versa.

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."

II. AUTHORITIES

A. Statutes
1. INA § 212(a)(9)(B)(ii), 8 USC § 1182(a)(9)(B)(ii)
An 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.

a. This 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 unlawfully
present.
(3) Aliens who meet an ever changing regulatory list of statuses "authorized by the Attorney
General" are not unlawfully present.
b. Exceptions
§ 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.
c. Standard for Waiver
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), discussed below).
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.

a. Unlawful Presence
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.
b. Exceptions
( 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 Waivers
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 status."

a. 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 "Unlawfully Present"
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)

Alien ineligible for adjustment of status who "continues in or accepts unauthorized employment" or who "has failed to maintain continuously a lawful status since entry."

a. Unauthorized Employment
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.
b. 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."

a. 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 Form 1-20.

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 nonimmigrant visa."

a. Unauthorized Alien
With respect to employment while alien was "unauthorized alien", see discussion of INA § 274A(h)(3) in Section 8 below.
b. Aliens Who Have Violated the Terms of the Nonimmigrant Visa But Are Not "Unlawful Present"

Examples 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 part-time.

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 admission."
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 General.

a. Unauthorized Aliens
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 States company.
b. Aliens Who Are "Unlawfully Present"
Examples of 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."

a. 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 status.

B. Regulations
1. 8 CFR § 214.1(c)(4)
Extension of stay may not be approved for an applicant who "failed to
maintain the previously accorded status or where such status expired."

a. 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 presence."

III. CONCLUSION

It 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.