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The Difference Between Lawful Status and Lawful Presence

Last updated on Aug 24th, 2017

One difference that is not widely understood by individuals and families in the immigration process is the difference between lawful presence and lawful status. There is a meaningful difference between these two concepts, and the difference sometimes has large consequences. For immigrants who hand over their case to a competent immigration lawyer, it is not important for them to know the difference. But, for immigrants who vow to handle their case on their own and spend a lot of time trying to understand all the contours of the relevant rules, it is often this crucial difference, which they have not fully taken in, which sinks their chances of achieving short and long-term goals.

Many people—erroneously—think that a person has lawful status if the person is not yet “unlawfully present,” and think—accurately—that unlawful presence has not occurred when the alien has been authorized by the Attorney General to stay.

Lawful status, at least for purposes of adjustment of status, only describes the immigration status of an individual who is in lawful permanent resident status; or an individual who is admitted to the US in nonimmigrant status, whose initial period of admission has not expired (unless the individual received an extension of status); or an individual in refugee or asylee status; or an individual who is in parole status, when the parole has not expired, been revoked or terminated; or an individual who is eligible for the benefits of Public Law 101–238 (the Immigration Nursing Relief Act of 1989) and who filed an application for adjustment of status on or before October 17, 1991.

It is important to know the difference between lawful status and lawful presence when one tries to change, extend, or adjust status. These actions require, with some exceptions, that one has continuously maintained lawful status. For example, adjustment of status is not available to someone “who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States….” 8 U.S.C. § 1255(c)(2). It irrelevant if one has maintained lawful presence, so confusing lawful presence and lawful status can have disastrous consequences here.

The importance of knowing the difference between lawful status and lawful presence is also important when a consular officer determines if an unlawful presence inadmissibility bar applies. It is important to recognize that merely because an individual is in unlawful status, one may not draw the conclusion that individual is unlawfully present: a noncitizen is deemed to be unlawfully present in the US, at least for the purposes of the unlawful-presence inadmissibility grounds, if she is present after the expiration of a period of stay authorized by the Department of Homeland Security or is present without being admitted or paroled into the US.

In some scenarios, a person who is out of status might prematurely leave the US if she confuses unlawful presence with unlawful status and she aims to avoid the three-year or ten-year unlawful-presence inadmissibility bars (which are triggered by being unlawfully present for certain lengths of time).

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