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Disclaimer: The legal information on our website is provided without any representations or warranties, express or implied. No attorney-client relationship is created through the use of our website. All information on this site is of a general nature and should not be considered legal advice. Always consult our firm or another qualified immigration lawyer about your specific situation prior to taking any action in your case.

What's the definition of undocumented?

February 21, 2018

How do I know if I’ve been unlawfully present?


You’d think this would be a straightforward question, right? Either you had all of your immigration documents in order or you didn’t. However, just like so many concepts in immigration law, lawful and unlawful presence can get pretty complicated. Here are the basics:

  • If you entered illegally and have never obtained a status, you’re unlawfully present. However, some penalties don’t start counting until you turn 18.

  • If you stayed longer than allowed on your visa, you’re unlawfully present, UNLESS you requested an adjustment of status or change of status before your stay expired and your application is approved.

  • If your adjustment or change of status request is denied, then the time you overstayed your visa while waiting for the decision is retroactively deemed unlawful presence. (What?! I know, it hardly seems fair because you won’t know until the decision is made.)

  • Time spent in DACA is not lawful presence, but at the same time, there is no unlawful presence being accumulated and added to your total.

  • Unlawful presence stops if you file an asylum application, UNLESS you were working without permission.

So why does it matter?


Your ability to obtain a green card might depend on how much time you've been unlawfully present. There are penalties under the immigration laws for having spent specific amounts of time unlawfully present. For married couples, unlawful presence usually becomes a serious problem only after you’ve been unlawfully present for six months or if you’ve lied to immigration officers about your history.


The good news is that in many cases there are ways to obtain waivers for the penalties for unlawful presence. We can help you figure out whether you’ve been unlawfully present, what penalties apply, and if they can be waived.



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