What Is “Unlawful Presence” and How Can It Affect Students in the U.S.?

When considering applying for a Green Card through the EB-5 Immigrant Investor Program, many potential investors and their families might encounter terms that are unfamiliar, such as “unlawful presence.” Understanding this concept is crucial, especially if you or your family members are already in the U.S. under a visa.

For students in the U.S., unlawful presence can have significant consequences, particularly when it comes to adjusting immigration status or applying for a Green Card. This article will explain what unlawful presence is, how it can affect students, and what to do if you or your family members find yourselves in such a situation.

What Is Unlawful Presence?

Unlawful presence is the term used by U.S. immigration law to describe the situation when an individual remains in the United States without proper authorization. For example, this could happen if a person overstays their visa or enters the country without being admitted legally (e.g., without going through immigration inspection at a port of entry).

Unlawful presence can begin to accrue in several situations, including:

Unlawful Entry

If a person is present in the United States without being admitted or paroled this constitutes unlawful presence.

Overstaying a Visa

If a person enters the U.S. on a temporary visa (such as a student visa, tourist visa, or work visa) and remains in the country after the visa expires, they accumulate unlawful presence.

The U.S. immigration system is strict about these matters. If a person accumulates unlawful presence for a certain period of time, they could face serious penalties, including being barred from re-entering the U.S. for several years.

How Unlawful Presence Affects Students

For international students in the U.S., the concept of unlawful presence is especially important. Many students enter the U.S. on an F-1 visa, which is a non-immigrant student visa. F-1 visa holders must follow specific rules regarding enrollment, work, and travel. If students do not comply with the terms of their visa, they may start to accrue unlawful presence, which could have long-term consequences.

If USCIS or an immigration judge makes a formal finding of a status violation and a student accumulates unlawful presence, they may face difficulties when it comes to changing their immigration status or applying for a Green Card. This is particularly concerning for those who are considering pursuing permanent residence in the U.S.

According to U.S. immigration law, if an individual has been in the U.S. unlawfully for more than 180 days but less than one year, they may be barred from re-entering the U.S. for three years. If they have been unlawfully present for more than one year, they could face a ten-year bar. These bars can be imposed when the individual leaves the U.S. and attempts to re-enter. Therefore, if a student with unlawful presence applies for a Green Card or changes status, their unlawful presence may be an obstacle.

What Are Derivatives and How Does Unlawful Presence Affect Them?

In the context of the EB-5 program, a “derivative” is a family member who is included as a beneficiary in the investor’s Green Card application. For example, if a primary EB-5 investor applies for a Green Card, their spouse and children (under 21) can also be included in the application as derivatives. However, if a derivative family member is currently in the U.S. and has accumulated unlawful presence, it could affect their ability to adjust status or get a Green Card.

If a family member (such as a child) has overstayed a visa or violated their status, they may be subject to the same bars on reentry as the primary applicant. In such cases, they may have to wait several years before they can return to the U.S. or adjust their status, which could delay or complicate the Green Card process.

However, there are provisions that may help mitigate this issue. For instance, if the EB-5 petition is approved while the individual is still in the U.S., they may be able to apply for a Green Card without leaving the country, potentially avoiding the unlawful presence bar. It’s crucial to consult with an immigration lawyer to understand the specific rules surrounding your situation.

Can the EB-5 Program Help a Derivative Who Has Overstayed a Visa?

The EB-5 program may offer some relief for derivatives who have overstayed a visa or accumulated unlawful presence, but this depends on the specific circumstances. Two key factors are important to consider:

Adjustment of Status in the U.S.

In general, individuals who have accrued unlawful presence are not eligible to adjust status from within the U.S. through the EB-5 program. To adjust status, the applicant must typically be in lawful immigration status at the time of filing Form I-485. If a derivative family member is out of status, they may need to leave the U.S. and apply for their immigrant visa through consular processing instead. However, departing the country after accumulating unlawful presence can trigger a three- or ten-year reentry bar, depending on how long they were unlawfully present.

Waivers of Unlawful Presence

In some cases, individuals who are subject to a reentry bar may be able to apply for a waiver of unlawful presence. These waivers are usually available to applicants who can demonstrate extreme hardship to a qualifying relative—typically a U.S. citizen or lawful permanent resident spouse or parent. While the process is complex and requires substantial documentation, it may be a potential option for certain applicants.

EB5AN Can Help You Obtain a Green Card

Unlawful presence is a serious issue that can affect international students and their families who are in the U.S. while considering options like the EB-5 Immigrant Investor Program. For students, unlawful presence can impact your ability to adjust status, apply for a Green Card, or return to the U.S. after leaving the country. If you or a family member find yourselves in this situation, it’s essential to consult an experienced immigration lawyer who can guide you through the process and help ensure that you understand the legal options available to you.

By staying informed about your immigration status and taking proactive steps, you can better navigate the complexities of U.S. immigration law and avoid potentially costly mistakes.

EB5AN has helped more than 2,300 families from 70+ countries become lawful permanent residents of the United States. If you would like to know more about your EB-5 investment options, book a free call with our expert team today.