Unlawful presence may be triggered either by overstaying the time authorized or by entering into an activity that violates the terms of conditions of status. For example, an alien present on a visitor visa begins to accrue unlawful presence on the day that he or she enters into
Un authorized employment. Unlawful presence is also triggered by the commission of a criminal offense that renders an alien inadmissible or removable.
Once an alien goes out of status, he or she is “unlawfully present” until the Service restores status or he or she leaves the United States.
Here, you entered the United States after inspection and admission by an Immigration Officer and you were granted admission as a visitor for pleasure or tourism pursuant to the issuance of an Arrival and Departure Record Form I-94 that was stapled to your passport at the time you were officially admitted to the United States.
Since 2001 to the present, you have accrued 13 years of continuous unlawful presence and therefore you are in violation of the immigration laws.
Section 212(a)(9)(B)(iii) enumerates instances in which an alien does not accrue “unlawful presence” for purposes of section 212(a)(9)(B):
1. Time in which an alien is under 18 years of age;
2. Time during which an alien has a bona fide application for asylum
Pending (unless the alien was employed without authorization at any time
during theperiod that the application was pending).
3. Time during which an alien is a beneficiary of family unity protection
4. For those admitted or paroled – time during the pendency or a non-
Frivolous application for change or extension of status (up to a maximum of 120
5. Those who qualify as a battered spouse or child as provided in section
212(a)(9)(B)(iii)(IV) of the Act.
Unlawful presence makes an alien subject to “removal Proceedings” if the alien is present in the United States and his illegal status is brought to the attention of the USCIS authorities.
In the event that the alien departs the United States territory voluntarily or pursuant to an order of removal section 212(a)(9)(B)(i)(II) of the INA will trigger a 10 year sanction that will prevent the alien from obtaining an immigrant or nonimmigrant visa to the United States unless he or she the spouse or son of a United States citizen or Permanent Resident of the United States and can show that if the immigration violation is “not waived” his or her spouse or parent will sustain “Extreme Hardship”.
Pursuant to section 212(a)(9)(B)(i)(II) of the Act, those aliens “unlawfully present” in the United States for one year or more, who depart or are removed and then seek admission are inadmissible for 10 years. The Attorney General may waive inadmissibility under section 212(a)(9)(B) in the case of an immigrant who can show that refusal of admission would result in extreme hardship to the alien’s spouse or parent who is a citizen or lawful permanent resident. The Service will retain authority to grant the extreme hardship waiver in consular cases (with no administrative appeal available); however, those seeking admission at a Port-of-Entry who seek such a waiver will be referred to an immigration judge (with administrative appeal to the Board of Immigration Appeals, as part of an appeal of a removal order). Form I-724, Application to Waive Inadmissibility Grounds and Permission to Reapply is being designed to accommodate this provision.
Under the current Law, the only way to legalize your status is thru the Removal Proceedings before an Immigration Judge if placed in removal proceedings, or before the USCIS pursuant to Adjustment of Status based on your marriage to a US Citizen pursuant to Section 245 of the Immigration and Nationality Act.
Until April 30 of 2001 aliens unlawfully present in the United States or aliens who violated their non-immigrant status could apply for Adjustment of Status under section 245(i) of the Immigration and Nationality Act if a petition for alien relative (Form I-130) or a Labor Certification with the Department of Labor was filed and the alien applicant paid a penalty in the amount of $1,000 US Dollars.
At the present only those aliens who had an I-130 petition on file or a Labor Certification filed with the Service postmarked April 30/2001 are eligible to adjust status pursuant to section 245 (i).
Therefore, you will be able to legalize your illegal status if you are married to a US Citizen or Marry a US citizen because spouses of US Citizens (immediate relative classification) are not penalized for unlawful periods of presence or engaging in unauthorized employment as long as they entered the United States territory after inspection and admission by an immigration officer at the port of entry or if you are placed in removal proceedings you may qualify for cancellation of removal for certain no permanent residents if you can establish 10 years of physical and continuous presence, you are a person of good moral character and you have qualifying relatives in the form of parents, spouse or children that are United States Citizens or Permanent Residents of the United States and you can establish that if you are ordered removed, your qualifying relative will sustains and “Extreme and Unusual Hardship”.
Aliens inadmissible pursuant to 212(a)(6)(A) of the Act are eligible to apply for adjustment of status under section 245(i) of the Act. However, aliens inadmissible pursuant to section 212(a)(9) of the Act are ineligible for adjustment of status under section 245 of the Act, subject
to the waiver and exception provisions of those grounds of inadmissibility.